Louisville & N.R. Co. v. Lancaster

• Decision Date: 11 April 1899
• Citation: 121 Ala. 471,25 So. 733
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. LANCASTER.

25 So. 733

121 Ala. 471

LOUISVILLE & N. R. CO. v. LANCASTER.

Supreme Court of Alabama

April 11, 1899

Appeal from circuit court, Elmore county; N. D. Denson, Judge.

Action by J. A. Lancaster against the Louisville & Nashville Railroad Company to recover damages for the alleged negligent killing of stock. There was a judgment for plaintiff, and defendant appeals. Affirmed.

The suit was originally brought in a justice of the peace court. The complaint in the justice of the peace court contained three counts, each of which claimed damages for the negligent killing of two steers and a milch cow. The two steers were killed on or about April 1, 1897, and the milch cow was killed on April 22, 1897, at different places. The justice found in favor of the plaintiff for the value of the two steers, and rendered judgment in favor of the defendant as to its liability for the killing of the milch cow. From this judgment, the defendant appealed to the circuit court. In the circuit court demurrers were interposed to the complaint which were sustained. Thereupon the plaintiff amended his complaint by substituting therefor two counts, in one of which he claimed damages for the negligent killing of two steers, and in the second claimed damages for the negligent killing of a milch cow by the defendant. To the second count of the complaint the defendant pleaded in bar the judgment of the justice of the peace. To this plea the plaintiff filed a replication, which, in effect, set up that there was but one suit pending before the justice, that he rendered but one judgment, and that the defendant in that suit appealed from said judgment. To this replication the defendant demurred upon the grounds (1) that it fails to aver or show that the cow and steers were killed at the same time; (2) that said replication fails to show that the liability for the killing of said steers and said cow arose from the same effect; (3) because said replication fails to show but that said complaint embraced two distinct torts. This demurrer was overruled. Thereupon issue was joined upon said plea and the replication. Plaintiff, examined in his own behalf, stated that in the month of April, 1897, he went to look at a cow which belonged to him, and which had been injured near what was known as "Maull's Crossing"; that the animal was lying 50 or 60 feet from the railroad on a dirt road, on the right-hand side of the railroad going from Wetumpka to Elmore, or on the north side of said railroad that the head of the cow was turned towards the railroad, and she was bruised on the right side on her head and hip, but that the skin was not broken; that the cow was worth $30 that she afterwards died; that he did not see her injured and that she was not on a public road. Evans Young testified that he knew when a cow belonging to the plaintiff was found on the dirt road near Maull's Crossing, 50 or 60 feet from the railroad track, between Elmore Station and Wetumpka that he had passed the point where the cow was afterwards found, going to his work, on the morning of April 22, 1897 that the cow was not lying on the road at that time, but on his return on the afternoon of the same day he found the cow, and tried to get her up; that he discovered she was injured about the right side of the head and on the right side; that he afterwards assisted in skinning the cow, and found bruises as above stated, and that the flesh seemed to have rotted where the bruises were shown; that the hair was knocked off where the bruises were, but the skin was not broken; and that he did not find any broken bones on the cow, but did not examine her legs. This witness described her as being on the north side of the track, as did the other witness. Will Martin, witness, testified that he passed the locality where the cow was found after the regular morning train had gone from Wetumpka to Elmore and from Elmore to Wetumpka, and the cow was not at that point; that near the middle of the day a special train ran from Wetumpka to Elmore, about 11 o'clock, consisting of an engine and tender; that he heard this engine blow two blasts of the whistle near the crossing; and that just after this special train passed the crossing, and when it had gotten about a mile away, he went down where he heard the train blow, and found the cow lying near the railroad, as described by the other witness. Witness at one time said the cow was 50 or 60 yards, but subsequently stated 50 or 60 feet; that the cow was on the right-hand side of the road going from Wetumpka in the direction of Elmore; and that the cow was not at the place at which he found her prior to the passage of the special train running in the direction of Elmore, but he found her a few minutes after said special train had passed. Witness did not see the engine strike her, and described her merely as having bruises about the head and side,-on the right-hand side, with the hair knocked off, and no bones broken. Witness testified that the cow was when he saw her about 50 yards from Maull's Crossing. This was all the evidence for the plaintiff. The defendant examined as a witness in its behalf one J. M. Jenkins, who testified that he was the engineer in charge of the only locomotive which ran on defendant's railroad from Wetumpka to Elmore in the month of April, 1897; that it was his duty to keep a record of every trip made by his engine over the road, and on examining his record he found that he ran a special train consisting only of an engine and coach, and that said special passed the place where a cow was said to have been injured about 12:20 p. m., April 22, 1897; that it was broad daylight; that his place on the engine was on the right-hand side going from Wetumpka to Elmore, and next to the north side of the track; that there was nothing to obstruct his view of the track at or near the point where the cow was said to have been hurt, sitting where he was; and that he had no knowledge of striking the cow or any other animal on that day with the engine, and to the best of his knowledge and belief he did not strike the cow. It is further shown that Askew, the justice of the peace who tried the cause, heard evidence and rendered judgment, as set out in the pleas. It was further admitted that the cow sued for in the second count of the complaint in the circuit court was the same animal mentioned in the judgment of the...