Louisville & N. R. Co. v. Watson

• Decision Date: 26 October 1922
• Docket Number: 6 Div. 717.
• Citation: 208 Ala. 319,94 So. 551
• Parties: LOUISVILLE & N. R. CO. v. WATSON.
• Court: Alabama Supreme Court

94 So. 551

208 Ala. 319

LOUISVILLE & N. R. CO. v. WATSON.

6 Div. 717.

Supreme Court of Alabama

October 26, 1922

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

Action for damages by M. L. Watson against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiff defendant appealed to the Court of Appeals, from which was transferred to the Supreme Court under Acts 1911, p. 450, § 6. Affirmed.

It is not error to refuse prayers or requested instructions covered or substantially covered by the instructions given.

The complaint is as follows:

"The plaintiff claims of the defendant the sum of $100 damages, for that heretofore, on, to wit, November 2, 1920, the defendant was engaged in the operation of a railroad in Jefferson county, Ala., and the plaintiff says that on the date aforesaid, at or near Parkwood, in Jefferson county, Ala., the defendant's agent or servant, while acting within the line and scope of his employment, negligently ran one of its trains into, over, or against a dog, the property of the plaintiff, and as a proximate consequence thereof the dog died."

Demurrer being overruled, the cause was tried on the general issue.

The evidence showed that plaintiff was fox hunting with five of his hounds on November 2, 1920, on a moonlight night, and that his dogs were running easterly towards defendant's railroad track, which ran north and south. The dog in question was found early next morning near the track, and the indications were clear that he had been run over by a passing train. Plaintiff was some distance behind the dog, but heard them baying as they approached the track, and heard a train passing at the same time.

The evidence tended to show that the dog was reasonably worth from $50 to $75.

Defendant offered no evidence, and there was no testimony which tended to show the circumstances of the dog's presence on the track, or the manner of his killing, except as stated above, and that three feet and part of his head were cut off by the wheels.

Besides the general affirmative charge, the following charges were requested by defendant and duly refused: "(1) If you believe the evidence in this case you cannot find for the plaintiff.

"(2) If you believe the evidence in this cause you must find for the defendant.

"(3) The same high degree of care required of the operatives of a train to prevent injury to persons or stock is not required to be exercised towards dogs.

"(4) Unless you find the reasonable market value of the dog in question to be in excess of $50, then you must find for the defendant.

"(5) The rule of law governing the liability of a street railway company for killing a dog and the rule of law that governs a railroad company's liability for killing a dog is the same.

"(6) There was no duty on the defendant's engine men to blow the whistle or ring the bell on the occasion of the killing of plaintiff's dog.

"(7) The court charges that, if you are reasonably satisfied from the evidence that the dog in question tried to pass under the train while in motion, and was killed as a proximate consequence thereof, your verdict should be for the defendant.

"(8) If you believe from the evidence that plaintiff's dog come suddenly on the track, in the dark, in front of defendant's train, so that by the exercise of reasonable diligence they could not avoid injuring it, then you cannot find for the plaintiff.

"(9) Defendant's agents or servants in charge of the train on the occasion complained of were not required to use the high degree of care they would towards persons or stock.

"(10) If you find from the evidence in this case that the tax had not been paid on the dog in question, then you cannot find for the plaintiff.

"(11) If you find from the evidence that plaintiff's dog came suddenly upon defendant's track in close proximity to defendant's train, and as a proximate result thereof was struck or run over by said train, and killed, then you must find for the defendant.

"(12) You have a right to take into consideration a dog's well-known agility in avoiding injury, its superior instinct, and the fact that the night was dark in determining whether defendant's agents in charge of its train were negligent on the occasion complained of."

The points of evidence embraced in the assignments of error are sufficiently stated in the opinion.

There was a verdict for $50 damages, and judgment accordingly.

Defendant's motion for new trial was overruled, and defendant appeals.

Huey & Welch, of Bessemer, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

SOMERVILLE J.

The complaint in this case is clearly not subject to demurrer. So. R. Co. v. Hobbs, 151 Ala. 335, 43 So. 844; Gordon v. T.C.I. & R. Co., 164 Ala. 203, 51 So. 316.

When plaintiff showed that his dog was killed by defendant's train, the burden was then placed on defendant to show that the killing was not negligently done. Code, § 5476; L. & N. R. Co. v. Fitzpatrick, 129 Ala. 322, 29 So. 859, 87 Am. St. Rep. 64; A. G. S. R. Co. v. Wedgworth (2 Div. 803 Ala. Sup.) 94 So. 549. See, also the opinion of Walker, P.J., in Selma St. & Sub. R. Co. v. Martin, 2 Ala. App. 537, 56 So. 601, the reasoning of which to that conclusion we fully approve. Those decisions show that dogs are "property," and are included in that term as used in the statute fixing the burden of proof.

The trial judge properly instructed the jury as to the burden of proof under the statute (Code, § 5476), and as to the principles which govern in determining liability for the negligent killing of dogs. Ala. City, etc., R. Co. v. Lumpkin, 195 Ala. 290, 70 So. 162; Tenn., etc., Co. v. Daniel, 200 Ala. 600, 76 So. 958; Hines v. Schrimscher, 205 Ala. 550, 88 So. 661.

It cannot be affirmed as a matter of law, that the evidence showed that defendant was not guilty of negligence in killing the dog, however plausible the argument may be in support of that conclusion. The general affirmative charge for defendant was therefore properly refused.

Refused charges 3 and 9 were covered by given charge 2.

Charge 4 was properly refused, since section 5355 of the Code providing that the judgment must be set aside and suit dismissed where the plaintiff recovers an amount below the court's jurisdiction, applies only to monied demands and to suits ex contractu, and not to actions in tort. Woodward Iron...