Central of Georgia Ry. Co. v. Stark

• Decision Date: 11 May 1900
• Citation: 126 Ala. 365,28 So. 411
• Parties: CENTRAL OF GEORGIA RY. CO. v. STARK.
• Court: Alabama Supreme Court

28 So. 411

126 Ala. 365

CENTRAL OF GEORGIA RY. CO. v. STARK.

Supreme Court of Alabama

May 11, 1900

Appeal from circuit court, Russell county; A. A. Evins, Judge.

Action by William E. Stark against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This was an action brought by the appellee, William E. Stark against the Central of Georgia Railway Company, to recover damages for the alleged negligent killing of a mule by one of the trains operated on its road.

The court at the request of the plaintiff gave to the jury the following written charge: "The court charges the jury that if at the time the mule came upon the railroad track, or in dangerous proximity thereto, the train was a quarter of a mile or more distant therefrom, and the engineer by keeping a proper lookout could have seen the mule when he so came on or in dangerous proximity to the track, and that defendant was running its train under such conditions, or at such a rate of speed, as to make it impossible for the servants or agents having the management of it to avoid injury to the mule in question, then the jury must find for the plaintiff."

The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following charges requested by it: "(1) If the jury believe the evidence in this case they must find a verdict for the defendant. (2) The court charges the jury that if they believe from the evidence that the mule came out of a skirt of woods adjoining the right of way when the engineer first saw it, and that this skirt of woods was off the right of way and that when he saw to mule it was coming towards the track out of said skirt of woods, in a run, that the engineer immediately blew the cattle alarm and did all that he could have done to prevent the injury to the mule then the plaintiff cannot recover and your verdict must be for the defendant. (3) The court charges the jury that if they believe from the evidence that the engineer was keeping a proper lookout and that the mule came out of some bushes off the right of way and on the right of way and then on to and down the track, and that the mule could not be seen by the engineer by keeping a proper lookout until it came out of the bushes, and that the engineer did not see the mule when it came out of the bushes and onto the right of way and on the track; and that the engineer when he first saw the mule used all means known to skillful engineers to stop the train and also to frighten the mule from the track, and that it was impossible to prevent striking and killing the mule, then your verdict must be for the defendant."

There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the giving of the charges requested by the plaintiff, and the refusal of the charges requested by the defendant.

G. L Comer, for appellant.

B. De. G. Waddell, for appellee.

HARALSON J.

The decisions of this court have settled the principle, that "the running of a train under such conditions, or at such rate of speed, as renders it impossible for the servants or agents having the management of it, to avoid injury to animals straying on the track, is negligence, rendering the company liable for the consequent injury." Railroad Co. v. Cochran, 105 Ala. 354, 16 So. 797; Railroad...