Central of Georgia Ry. Co. v. Edmondson

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

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 whose testimony corroborated that of the plaintiff. The defendant introduced as a witness one Calloway, who testified that he was an engineer of many years' experience, and that he was the engineer on the engine that killed plaintiff's horse; that just before the accident he was keeping a steady lookout, and, if the horse had been on the track, he could have seen him 200 or 300 yards from the place where the horse went upon the track of the defendant; that the engine and train were equipped with the best appliances, and such as were in use upon well-regulated railroads; that the horse was not grazing near the railroad track, and he did not see him until he ran out of the woods that skirted the right of way, and ran up the embankment and upon the track about 50 yards in front of the engine; that the train was running at the rate of 20 miles an hour; and that as soon as he saw the horse running towards the railroad track he blew the cattle alarm, reversed the engine, applied the air brakes with which the engine and train was equipped, and did all that was known to skillful engineers to stop the train and prevent the accident, but that it was impossible to prevent the accident...