Central of Georgia Ry. Co. v. Larkins

• Decision Date: 29 November 1904
• Citation: 37 So. 660,142 Ala. 375
• Parties: CENTRAL OF GEORGIA RY. CO. v. LARKINS.
• Court: Alabama Supreme Court

37 So. 660

142 Ala. 375

CENTRAL OF GEORGIA RY. CO. v. LARKINS.

Supreme Court of Alabama

November 29, 1904

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by Caroline Larkins against the Central of Georgia Railway Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

The facts relating to the rulings of the trial court upon the pleadings, and showing the tendency of the evidence introduced, are sufficiently shown in the opinion. After the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of said charges as asked: "(1) The court charges the jury that, if they believe the evidence, they must find for the defendant." "(5) The court charges the jury that there is no evidence that the engineer was guilty of any negligence in failing to stop the train." "(7) If the jury believe from the evidence that the engineer of the defendant's train was on the lookout in the direction in which the train was going, and that he could only see the mules a distance of 200 yards, then they must find for the defendant. (8) If the jury believe from the evidence that when the mules were discovered by the engineer, and that the engineer was on the lookout in the direction in which the train was going, it was impossible to have stopped the train by all the means known to skillful engineers, then they must find for the defendant." "(10) The court charges the jury that they cannot captiously reject the testimony of any witness, and if they further believe from the evidence that the engineer was the only witness who saw the mules when they came on the track, and if they believe his testimony then they must find for the defendant. (11) If the jury believe from the evidence that the mules were down at the foot of an embankment, and remained there until the train was within 100 yards of them, and that they then ran up the bank when the train was so close to them that it was impossible to stop the train by all means known to skillful engineers, they must find for the defendant." "(14) The court charges the jury that the defendant had the right to run its trains at any rate of speed it saw fit at the time and place when and where the injury happened." There were verdict and judgment for $275 in favor of the plaintiff. Thereafter the defendant made a motion for a new trial upon the ground that the verdict of the jury was contrary to the evidence and the law, and that the court erred in its several rulings in the trial of the case. This motion was overruled, and the defendant duly excepted. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Charles P. Jones, for appellant.

Hill Hill & Whiting, for appellee.

DENSON J.

This suit was brought by Caroline Larkins against the railroad company for the recovery of damages for the alleged negligent killing of two mules, the property of plaintiff, by defendant, on its track, at a point between the city of Montgomery and Barachias, in the county of Montgomery. The defendant filed two pleas in answer to the complaint, the first of which is the general issue, and the other plea (No 2) is in the following language, to wit: "For further answer to the complaint, defendant says that the mules which are the subject of this suit came suddenly on the track when the defendant's engine was so close to the animals that it was impossible to stop said train in time to avoid the accident." The judgment entry recites that plea No. 2 was demurred to, and further shows that the demurrer was sustained, but we fail to find the demurrer set out anywhere in the record. Issue was joined between the parties, presumably, on the first plea--the plea of the general issue. It is quite apparent that all matters which might have been given in evidence under the second plea would have been competent as evidence under the general issue; and we may add that the record shows affirmatively that the appellant had, under the general issue, the benefit of the same defense which it sought by its second plea to set up. It therefore follows, in accordance with previous decisions of this court, that the action of the court in sustaining the demurrer to defendant's plea No. 2, if error at all, was error without injury to the defendant. L. & N. R. Co. v. Hall, 131 Ala. 161, 32 So. 603; United States Fidelity & Guaranty Co. v. Damskibsaktieselskabet Habil, 138 Ala. 348, 35 So. 344.

One of the rulings of the court below which constitutes an assignment of error was the refusal of the court to give the general affirmative charge, with hypothesis, requested in writing by the defendant. The evidence, without conflict showed that two mules, the property of the plaintiff, were killed by a freight train of the defendant on its road at a point between Montgomery and Barachias, in Montgomery county, about the 18th day of January, 1903, in the daytime, and that the mules were of the value of $275. The evidence further showed...