Central of Georgia Ry. Co. v. Brister

• Decision Date: 03 April 1906
• Citation: 40 So. 512,145 Ala. 432
• Parties: CENTRAL OF GEORGIA RY. CO. v. BRISTER.
• Court: Alabama Supreme Court

40 So. 512

145 Ala. 432

CENTRAL OF GEORGIA RY. CO. v. BRISTER.

Supreme Court of Alabama

April 3, 1906

Appeal from Circuit Court, Bullock County; A. A. Evins, Judge.

"To be officially reported."

Action by Dan Brister against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

This was an action by appellee against appellant for the negligent killing of a horse belonging to appellee by one of appellant's engines. The evidence tended to show that an engine pulling one of appellant's freight trains struck a horse belonging to appellee and killed him. There was conflict in the testimony as to the distance the horse walked down the track from the place where it came on to the point at which he was killed. The evidence for appellant tended to show that the engine and cars were in proper condition properly equipped with all the appliances necessary to safely running the train; that the engineer was keeping a steady lookout; that the train was running at the time about 18 miles an hour and going downgrade; that the horse was struck right at the bottom of the grade; that the engineer first saw the horse on the north side of the track about 10 or 15 steps from the end of the cross-ties, when he was then about 100 yards from the horse; that he sounded the cattle alarm, put on brakes, and reversed his engine, and did everything known to a skillful engineer; that when the train got within 50 yards of the horse the horse suddenly ran up a slight fill and ran down the track in front of the train about 75 or 100 feet before he was struck; and that the train could not have been stopped under 200 yards. The defendant requested the court to give the following written charges, each of which the court refused: Charge 1: "If the jury believe from the evidence in this case that the train was properly equipped and was being properly run, and that the engineer was keeping a proper lookout, and that the horse came suddenly upon the track and so close in front of the train that the accident could not be avoided, and that the engineer discovered the horse as soon as it could have been discovered, and did everything that could be done by a skillful engineer to avoid the accident, then the jury must find for the defendant." Charge 2: "If the jury believe from the evidence in this case that the horse in question came suddenly upon the track and so close in front of the train that the accident could not be avoided, then your verdict must be for the defendant." There was judgment for plaintiff for $50.

G. L Comer, for appellant.

E. L Blue, for appellee.

McCLELLAN C.J.

The charges requested by defendant should have been given. Louisville & Nashville Railroad Co. v. Brinkerhoff, 119 Ala. 606, 24 So. 892.

Reversed and remanded.

TYSON, SIMPSON, and ANDERSON, JJ., concur.

On Rehearing.

WEAKLEY C.J.

The late Chief Justice was not entirely satisfied with the above opinion, nor with his opinion in L. & N. R. R. Co. v. Brinkerhoff, 119 Ala. 606, 24 So. 892, in so far as it held the fifth charge, requested by the defendant, in that case should have been given. Upon his own motion he caused this case to be placed on the rehearing docket for futher consideration by the full court. This opinion expresses the views of all the judges, and is written after a conclusion first reached in general conference.

The evidence was conflicting as to the distance the horse had run upon or along the track in front of the train, and inferences might be drawn from the whole evidence which would authorize a recovery by the plaintiff, while other inferences that might be drawn, and some positive evidence, if believed would entitle the defendant to a verdict. The evidence of the defendant's...