Louisville & N.R. Co. v. Coxe

• Decision Date: 24 May 1928
• Docket Number: 6 Div. 104
• Citation: 218 Ala. 25,117 So. 293
• Parties: LOUISVILLE & N.R. CO. v. COXE.
• Court: Alabama Supreme Court

117 So. 293

218 Ala. 25

LOUISVILLE & N.R. CO. v. COXE.

6 Div. 104

Supreme Court of Alabama

May 24, 1928

Rehearing Denied June 21, 1928

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages by A.Y. Coxe against the Louisville & Nashville Railroad Company, for negligent killing of a dog. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

McClellan & Stone, of Birmingham, for appellant.

Wm Henry Beatty, of Birmingham, for appellee.

PER CURIAM.

The appeal is from a judgment recovered by appellee against appellant railway company for the death of plaintiff's bird dog that was run over and killed by cars of defendant's train at the mining camp known as Muscoda. The defendant's locomotive was pushing several cars on an up grade, going toward Raimund, the cars reaching the dog first, the train moving from 20 to 35 miles per hour. According to one witness, the dog was killed "about 40 or 50, maybe 60 feet from the crossing," and, from another, "the dog was going across a walkway" and had gotten on the track "beyond the crossing towards Sloss; *** just jumped right upon the track."

The dog was not killed at any public crossing; therefore the provisions of section 9952, Code of 1923 (if in any case they would be of influence in a case of this character), are without application here. The evidence tends to show no member of the train crew on the car at that end of the train saw the dog. No evidence contradictory to that of plaintiff was offered by defendant as to the accident, and the court gave the affirmative charge for plaintiff evidently upon the theory that a dog, being personal property, is within the influence of our "burden of proof" statute (section 9955, Code of 1923; L. & N.R.R. Co. v. Watson, 208 Ala. 319, 94 So. 551; A.G.S.R.R. Co. v. Wedgworth, 208 Ala. 514, 94 So. 549; Southern Ry. v. Harris, 207 Ala. 534, 93 So. 470), and, as said, the statute is not confined in its operation to the three preceding sections in the Code (Ex parte Southern Ry., 181 Ala. 486, 61 So. 881) the burden of proof shifted to the defendant. If, however the evidence as to the death of the animal suffices to overcome the effect of the statute and meets the requirements thereof, the affirmative charge should not be given, as it is immaterial by which party to the litigation the evidence is offered. 22 Corpus Juris, 70; U.S. v. Beaman (C.C.A.) 242 F. 876.

The rule under the burden of proof statute must be considered however, in view of the different degree of care due to be observed as to dogs from that of stock or cattle.

"The duty of

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