Hines v. Schrimscher

• Decision Date: 21 April 1921
• Docket Number: 6 Div. 291
• Citation: 205 Ala. 550,88 So. 661
• Parties: HINES, Director General of Railroads, v. SCHRIMSCHER.
• Court: Alabama Supreme Court

88 So. 661

205 Ala. 550

HINES, Director General of Railroads, v. SCHRIMSCHER.

6 Div. 291

Supreme Court of Alabama

April 21, 1921

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action by George W. Schrimscher against Walker D. Hines, as Director General of Railroads, operating the Mobile & Ohio Railroad for damages for killing a dog. Judgment for the plaintiff and defendant appeals. Transferred from Court of Appeals under section 6, p. 450, Acts 1911. Reversed and remanded.

Foster Verner & Rice and J.R. Bealle, all of Tuscaloosa, for appellant.

E.L. Clarkson and F.F. Windham, both of Tuscaloosa, for appellee.

THOMAS J.

The action was for damages for killing a dog.

The duty of railroad companies and their agents and servants in charge of and operating moving trains, upon the discovery of a dog upon the track, or in known dangerous proximity thereto, is to avoid unnecessarily injuring such animal. Such agent may act upon the presumption that a dog will get out of the way in time to avoid injury, or that it will not move into danger, provided there is nothing in the circumstances of its approach or manner of its being upon the track to indicate to a reasonably prudent operator that the animal is helpless, or indifferent to its surroundings and danger. T.A. & G.R. Co. v. Daniel, 200 Ala. 600, 76 So. 958; A.C.G. & A. Ry. Co. v. Lumpkin, 195 Ala. 290, 70 So. 162; Nor. Ala. Ry. Co. v. Gantt (App.) 81 So. 852.

Charges C and D, given at plaintiff's request in writing, were to a different effect--that, on seeing the dog on the track, though there was nothing in the circumstances to indicate to a reasonably prudent engineer that the dog was helpless to extricate itself from danger, or that it was indifferent at the time to its surroundings and to the dangerous approach of the train, the engineer must immediately "use all the means within his power known to skillful engineers in order to stop the train;" and use "every means within his power known to skillful engineers, such as applying brakes and reversing the engine, in order to stop the train." Failing in the immediate use of such preventive measures, a verdict for plaintiff was directed in charge C, which was contrary to other instructions given the jury, and was erroneous. Clinton Min. Co. v. Bradford, 192 Ala. 576, 592, 69 So. 4; Talley v. Whitlock, 199 Ala. 28, 73 So. 976; B.R.L. & P. Co. v. Seaborn, 168 Ala. 658, 53 So. 241. Charge D was subject to the like vice.

There are provisions of section 5473 of the Code for the protection and safety of persons, stock, etc., that may be within the safety zone prescribed by the statute, and not applicable to some other place--not within the protection of the statute (A.G. & A.S. v. McDaniel, 192 Ala. 639, 69 So. 60; B.S.R. Co. v. Harrison, 203 Ala. 284, 293, 82 So. 534; L. & N. v. Moran, 200 Ala. 241, 76 So. 7; Ill. Cent. R.R. Co. v. Camp, 201 Ala. 4, 75 So. 290; Walker v. A.T. & N. Ry. Co., 194 Ala. 360, 70 So. 125; N.C. & St. L. Ry. Co. v. Vincent, 190 Ala. 91, 66 So. 697; Campbell v. Mobile & O.R. Co., 154 Ky. 582, 157 S.W. 931, 46 L.R.A.[ N.S.] 881, Ann.Cas.1915B, 472), and of the duties required on perceiving an obstruction on the track. It is insisted that the evidence fails to show "the crossing" inquired about was not a public crossing (Sims v. A.G.S., 197 Ala. 151, 72 So. 349, Jolley v. Sou. Ry. Co., 197 Ala. 60, 72 So. 382); the evidence on this point being in nature inferential, it is not necessary that we decide whether it was sufficient, since on a retrial the witnesses may answer specifically as to...