Louisville & N.R. Co. v. Murphree

• Decision Date: 16 January 1901
• Citation: 129 Ala. 432,29 So. 592
• Parties: LOUISVILLE & N. R. CO. v. MURPHREE.
• Court: Alabama Supreme Court

29 So. 592

129 Ala. 432

LOUISVILLE & N. R. CO. v. MURPHREE.

Supreme Court of Alabama

January 16, 1901

Appeal from city court of Anniston; James W. Lapsley, Judge.

Action by J. C. Murphree against the Louisville & Nashville Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

This action was brought seeking to recover damages for the defendant's failure to keep in repair a cattle guard on its road after demand of the plaintiff, it being averred in the complaint that by reason of such failure a crop cultivated by the defendant was destroyed by hogs getting into the plaintiff's field. On the trial of the cause it was shown that the plaintiff cultivated a field through which the railroad track of the defendant ran, but that he did not own said land, but rented it, agreeing to pay the owner so much money for it. There was evidence introduced on the part of the plaintiff tending to show that the cattle guard on the defendant's track at the point in the field which the plaintiff was cultivating was out of repair and defective that plaintiff notified the division superintendent and the section foreman of the defendant that the cattle guard was in a defective condition, and asked them to repair it; that they failed or refused to do so; and that by reason of such failure he sustained the injuries complained of. Upon the hearing of all the evidence the court gave the general affirmative charge at the request of the plaintiff. The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give the general affirmative charge requested by it. There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the giving of the general affirmative charge requested by the plaintiff, and the refusal to give a like charge requested by the defendant. In this court the appellee moved to strike the bill of exceptions from the record upon the ground that said bill of exceptions was signed after the appeal bond was filed in the office of the clerk of the said court and approved by said clerk, and after notice of the bill being served on the defendant, and that said bill was signed after the appeal taken to the supreme court was perfected.

Thos G. & Chas. P. Jones, for appellant.

E. H Hanna, for appellee.

DOWDELL J.

The plaintiff bases his right of action in this case on section 3480 of the Code. This section reads as follows: "Every person or corporation operating a railroad must put cattle guards upon such railroad and keep the same in good repair whenever the owner of the land through which the road passes shall make demand upon them or their agents and show that such guards are necessary to prevent the depredation of stock upon his land." As was said by this court in the case of Railroad Co. v. Parsons, 100 Ala. 665, 13 So. 603 27 L. R. A. 264: "It is well...