Louisville & N.R. Co. v. Dumas

• Decision Date: 26 April 1923
• Docket Number: 6 Div. 847.
• Parties: LOUISVILLE & N. R. CO. v. DUMAS.
• Court: Alabama Supreme Court

96 So. 243

209 Ala. 324

LOUISVILLE & N. R. CO. v. DUMAS.

6 Div. 847.

Supreme Court of Alabama

April 26, 1923

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Action by Paul Dumas against the Louisville & Nashville Railroad Company for damages for the killing of a cow. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. From a judgment for plaintiff, defendant appeals. Affirmed.

Huey &amp Welch, of Bessemer, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

McCLELLAN J.

The plaintiff, appellee, was accorded judgment against the appellant for the negligent killing of plaintiff's cow.

The complaint was not subject to the demurrer.

The cow was killed by a locomotive of the defendant. Under the statute (Code, § 5473) the burden of proof to negative negligence as the proximate cause of the animal's death was upon the defendant. The material issues presented inquiries due to be submitted to the jury's determination; and hence the defendant was not erroneously refused the general affirmative charge in its favor. So unless error intervened through rulings on the admission or rejection of evidence or through refusal of defendant's special requests for instruction, the judgment must be affirmed.

Since the trial courts are vested with discretion in respect of the allowance or disallowance of leading questions to a witness no reversible error was committed on this trial in the exercise by the court of the discretion reposed. 12 Mich. Ala. Dig. pp. 1195, 1196.

The witnesses who testified to the value of this animal in August, 1921, were shown to be qualified to give an opinion in the premises. Code, § 3960. No error attended the reception of their opinions of the value of the animal.

The witness Baty was not shown to have had any such experience or information as would warrant him in forming and expressing an opinion whether there were any milch cows, with first calf, capable of giving daily the quantity of milk the plaintiff testified this cow gave.

On the cross-examination of defendant's engineer, who had had many years experience, he was asked whether he remembered every animal his engine struck, and whether he often struck cows on the line. These questions were not inappropriate, on cross-examination, to test the credibility of the witness in his description of the circumstances attending the killing of plaintiff's cow.

The cow was killed by defendant's engine. The defense was that as the cow had crossed the track, probably to a place of safety from the approaching train, some one by throwing a rock at her, caused the animal to suddenly turn back on the track, too close to admit of preventive measures to avoid her injury. Davis, plaintiff's witness who saw the engine strike the animal, testified that the cow turned on or back to the middle of the track when the cattle alarm was sounded. Being recalled in rebuttal, Davis, the eyewitness, was properly allowed to testify, in contradiction of defen...