Louisville & N.R. Co. v. Brinckerhoff

• Decision Date: 29 October 1898
• Citation: 119 Ala. 606,24 So. 892
• Parties: LOUISVILLE & N. R. CO. v. BRINCKERHOFF ET AL.
• Court: Alabama Supreme Court

24 So. 892

119 Ala. 606

LOUISVILLE & N. R. CO. v. BRINCKERHOFF ET AL.

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, Shelby county; George E. Brewer, Judge.

Action by W. E. Brinckerhoff & Co. against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiffs defendant appeals. Reversed.

This was an action to recover for the alleged negligent killing of a mare and colt alleged to have been the property of the plaintiff. The defendant pleaded the general issue, and denied by sworn plea that the property alleged to have been killed was the property of the plaintiff. The defendant also filed a sworn plea in which it set up that it was a common carrier, engaged in the transportation of passengers and freight from points in Alabama to points in and out of Alabama; that the engine and train which killed the stock were equipped with the best appliances, and were in charge of skillful trainmen; that the headlight of the engine was the best headlight in use on the best railroads in the country and by aid of said headlight the engineer on the train could not see an object the size of a horse on the track, in the nighttime, over 75 yards ahead of him, which was too short a distance within which to stop the train after the discovery of such an object; that, to enable the defendant to stop its train within the distance which the engineer could see an animal on the track ahead of the locomotive, it would be necessary for the defendant to run its passenger trains at a rate of speed not exceeding 10 miles an hour; that the train at the time of the accident was running at 40 miles an hour which was in itself a safe rate of speed; and that to moderate the speed so as to enable the train to be stopped within the distance which the horse could be seen ahead of the engine would prevent the defendant from properly discharging its duties as a common carrier, and cause it to incur great expense. Issue was joined upon all of these pleas. The evidence for the plaintiff tended to show that he sold the mare and colt to one Gist, taking the latter's note therefor, in which it was expressly stipulated and agreed that the title to the mare and colt should remain in the plaintiff until they were paid for, and that the property was delivered to said Gist with this understanding and agreement; that, a few days before the killing of the animals, Gist surrendered them, being unable to pay for them that, after bringing them to the plaintiff's place of residence, Gist requested the plaintiff to allow him to drive the mare home, and the defendant agreed to send for her; that this was not done for several days; that, a few days after Gist drove the mare home, there was a suit brought against said Gist by his wife, and an attachment ancillary thereto was levied upon the mare and colt, as the property of Gist; that after the levy of this attachment the plaintiff in the present suit made affidavit and bond, and instituted claim to the property, and the property pending the claim suit was delivered to him upon his execution of a forthcoming bond. It was while the mare and colt were in his possession pending the claim suit that they were killed. There was testimony by some of the witnesses for the plaintiff tending to show that there were tracks along the roadway of the defendant, which appeared to be made by a mare and colt, for some distance from the point where they were knocked from the track by the moving engine. The testimony for the defendant tended to show that the mare and colt came upon the track immediately in front of the moving engine, and were not seen by the engineer until after they were struck by the engine. The speed of the train was shown to have been between 35 and 40 miles an hour. It was further shown that the claim suit was decided against the claimant, in favor of Mrs. Gist. This claim suit was tried before a justice of the peace. Upon the examination of the plaintiff as a witness, he was asked this question: "Has that debt of Mrs. Gist been paid?" The defendant objected to this question as calling for immaterial, irrelevant, and incompetent evidence, and duly excepted to the court's overruling the objection. Upon the cross-examination of J. M. Reynolds, who was the justice of the peace before whom the claim suit was tried, the said witness was asked the following question: "Was not that stock killed before the trial before the justice of the peace came off?" The defendant objected to this question on the ground that it called for incompetent, irrelevant, and inadmissible evidence. The court overruled this objection, and the defendant duly excepted. During the examination of J. H. Cox as a witness, and after he had testified that he was an engineer, and was on the engine which killed the mare and colt sued for, he was asked the following question: "Mr. Cox, if you moderate the...