Louisville & N.R. Co. v. Christian Moerlein Brewing Co.

• Decision Date: 18 April 1907
• Citation: 150 Ala. 390,43 So. 723
• Parties: LOUISVILLE & N. R. CO. v. CHRISTIAN MOERLEIN BREWING CO.
• Court: Alabama Supreme Court

43 So. 723

150 Ala. 390

LOUISVILLE & N. R. CO. v. CHRISTIAN MOERLEIN BREWING CO.

Supreme Court of Alabama

April 18, 1907

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by the Christian Moerlein Brewing Company against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Action by appellee against appellant for killing certain stock. The facts are sufficiently stated in the opinion. Certain charges given at the instance of the plaintiff are assigned as error. These charges are as follows:

(1) "The court charges the jury that under the evidence in this case the burden is on the defendant to reasonably satisfy their minds by a preponderance of the evidence that the railroad company is not guilty of any negligence which proximately contributed to the death or injury of plaintiff's stock."

(2) "The court charges the jury that the law says to a railroad company: 'Your engineer must blow the whistle or ring the bell of your locomotive at short intervals while moving within a city.' And if the jury believe from the evidence that the engineer on the locomotive that ran upon plaintiff's stock (if they believe one did run on them) did not either ring the bell at short intervals or blow the whistle at short intervals while running through the city of Mobile near One Mile creek, and that such failure on his part proximately contributed to the killing of the stock, then you ought to find a verdict for the plaintiff."

(3) "The court charges the jury that the duty is on the defendant, in running locomotives along its tracks, to use due care to avoid injuring the property of others, and that this due care includes a compliance with the safeguards provided by law for the protection of such property of others; and if the jury believes from the evidence in this case that the defendant did not exercise due care, or did not conform to the safeguards established by law for the protection of the property of others, then you ought to find a verdict for the plaintiff, provided you further find that such failure to use due care or conform to such safeguards proximately contributed to the injury of plaintiff's stock."

(4) "I charge you, gentlemen of the jury, that if you believe from the evidence that plaintiff's stock were run into and upon and destroyed by a locomotive of the Louisville & Nashville Railroad Company, running within the limits of the city of Mobile, then the presumption is that the injury to the said stock resulted from negligence of the said Louisville & Nashville Railroad Company, defendant in this case; and the burden is on the railroad to reasonably satisfy you by preponderance of the evidence that its engineer, in charge of the locomotive that ran into the stock (if you believe that the stock were run into), blew the whistle or rang the bell, or caused the same to be done, at short intervals while he was passing through the city of Mobile near One Mile creek, and shortly before striking the stock and that there was no negligence on the part of the said railroad company or its agents. And if defendant failed to so reasonably satisfy you by a preponderance of the evidence then the plaintiff should get a verdict."

(5) "The court charges the jury that, if they believe from the evidence that a locomotive of the defendant railroad company killed or injured or destroyed the plaintiff's stock, and that such locomotive was running at a higher rate of speed than is prescribed by the ordinances of the city of Mobile (if you find from the evidence that there is an ordinance of the city of Mobile fixing the speed limit), and such excess of speed over the speed limit fixed by the said ordinance (if you find from the evidence that such an ordinance exists) proximately contributed to the injury of plaintiff's stock, then you ought to find a verdict for the plaintiff."

(6) "The court charges the jury that if they believe from the evidence that defendant's locomotive was running at such rapid rate of speed that it would have been impossible by the use of ordinary means and appliances to stop the locomotive and prevent the injury to the stock within the distance in which stock upon the track could be seen by aid of the headlight, then the defendant was guilty of negligence; and if the jury further believe from the evidence that that negligence proximately contributed to the injury to plaintiff's stock, then the plaintiff ought to recover."

(7) "The court charges the jury that the duty is on a railroad company to run its locomotive at night at such a rate of speed that it can be stopped, if necessary, by the use of ordinary means and appliances within the distance in which stock would be seen upon the track by the aid of the headlight of the locomotive; and if the defendant railroad company in this case failed in this duty, and such failure was the proximate cause of the injury to plaintiff's stock, then they ought to find a verdict for the plaintiff."

(C) "The court charges the jury that if they believe from the evidence that there is an ordinance in the city of Mobile fixing a speed limit which shall not be exceeded by locomotives running within the limits of the city, that the defendant's locomotive struck and destroyed plaintiff's stock, that when it struck and destroyed the stock it was exceeding the said speed limit, and that this was within the city of Mobile, the plaintiff ought to recover."

(B) "The court charges the jury that if they believe from the evidence that defendant's locomotive was being run at the time of the injury complained of at a greater rate of speed than is prescribed by the city ordinance, which is in evidence, then such running of said locomotive at such rate of speed would be negligence."

(D) "The court charges the jury that if they believe from the evidence that defendant's locomotive, when it struck plaintiff's stock, was running at a rate of speed greater than eight miles an hour, then they should find for the plaintiff."

(E) "If the plaintiff has proven by the evidence to your reasonable satisfaction the injury to the stock by defendant its value, and that it was plaintiff's stock, plaintiff has made out his case; and the defendant, to excuse itself must show by a preponderance of the evidence to your reasonable satisfaction that it was guilty of no negligence proximately contributing to the injury."

(M) "If the jury find a verdict for the plaintiff, they should add to the value of the stock found by them interest from the date of the injury to the date of the verdict."

Gregory L. & H. T. Smith, for appellant.

Pillans, Hanaw & Pillans, for appellee.

SIMPSON J.

This was an action by the appellee against the appellant for damages for the death of two horses and three mules, the property of the plaintiff, which, it is claimed, were killed by reason of the negligence of defendant's agents in managing its locomotive. The only assignments of error insisted on by appellant relate to the action of the court in giving certain charges at the request of the plaintiff.

1. Section 3440 of the Code of 1896 requires the engineer, or other person having control of a locomotive, to blow the whistle or ring the bell, at short intervals, while passing through a village, town, or city, and also, on perceiving obstructions, to use all means, etc. Section 3443 makes the company responsible for damages "resulting from a failure to comply with the requirements of the three preceding sections, or any negligence on the part of such company or its agents; and when any person or stock is killed or injured, or other property destroyed or damaged, by the locomotive or cars of any railroad at any one of the places specified in the three preceding sections, the burden of proof, in any suit brought therefor, is on the railroad company to show a compliance with the requirements of such sections, and that there was no negligence on the part of the company or its agents." Mobile & B. Ry. v Holborn, 84 Ala. 133, 138, 4 So. 146; A. G. S. R. R. v. Boyd, 124 Ala. 525, 528, 27 So. 408. It is manifest, then, that the burden is upon the plaintiff, first, to show that the stock was killed or injured by the locomotive or cars at one of the places named, and, when that is done, the burden is on the...