Central of Georgia Ry. Co. v. Edmondson

• Court: Supreme Court of Alabama
• Writing for the Court: DOWDELL, J.
• Citation: 135 Ala. 336,33 So. 480
• Parties: CENTRAL OF GEORGIA RY. CO. v. EDMONDSON.
• Decision Date: 21 January 1903

33 So. 480

135 Ala. 336

CENTRAL OF GEORGIA RY. CO.
v.
EDMONDSON.

Supreme Court of Alabama

January 21, 1903

Appeal from circuit court, Henry county; John P. Hubbard, Judge.

Action by B. W. Edmondson against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought to recover damages for the alleged negligent killing of a horse. The complaint, as amended, contained two counts, which were as follows: "(1) The plaintiff claims of the defendant the sum of seventy-five dollars, for that whereas on or about the 4th day of September, 1901, the defendant killed one horse, about ten years old, the property of the plaintiff, in Henry county, Ala., through and by reason of negligence or want of skill on the part of the defendant's agents in the management and running of its said locomotive, cars, or train, wherefore plaintiff sues. (2) The plaintiff further claims of defendant the sum of seventy-five dollars as damages, for that whereas on or about the 4th day of September, 1901, defendant did, because of negligence or want of skill of defendant's employés in the management or running of its said trains, locomotives, or cars, kill one horse, the property of the plaintiff, in Henry county, Ala., wherefore he sues." To each of these counts the defendant demurred upon the ground that it was not shown in said count as to how the defendant killed the plaintiff's horse, and that it fails to show in what the negligence of the defendant consisted. These demurrers were overruled, and the defendant duly excepted. The defendant pleaded the general issue. On the trial of the case the plaintiff, as a witness in his own behalf, testified to the killing of the horse by a train being operated on the defendant's road; that said horse was killed in his field; that he noticed tracks of the horse which was killed upon the embankment of the railroad and along the railroad for 75 or 100 yards; that, at the place where these tracks went upon the embankment, he saw where the horse had been grazing; that the tracks showed that the horse, as he ran along the railroad track, increased his speed until he was overtaken by the train in the cut, where he was killed; that the train which killed the horse was running from east to west; that at the point where the horse went upon the track of the defendant the track was straight for 200 or 300 yards, and that the engineer on a train coming from the east, keeping a proper lookout, could see the horse go upon the track at the place where the horse that was killed entered the defendant's track, 200 or 300 yards before reaching such place. The plaintiff further testified that, on the side of the track where the horse went upon the defendant's track, the right of way was cleared for 50 feet. Upon the cross-examination of the plaintiff by the defendant's counsel, he was asked the following question: "At the time the horse, for the killing of which this suit is brought, was killed, was there not other horses in the same field in which the killing took place?" The plaintiff objected to this question, the court sustained the objection, and to this ruling the defendant duly excepted. There were also witnesses introduced by the plaintiff...