Louisville N.R. Co. v. Gentry

• Citation: 103 Ala. 635,16 So. 9
• Court: Supreme Court of Alabama
• Decision Date: 21 June 1894
• Parties: LOUISVILLE & N. R. CO. v. GENTRY.

16 So. 9

103 Ala. 635

LOUISVILLE & N. R. CO. v. GENTRY.

Supreme Court of Alabama

June 21, 1894

Appeal from circuit court, Chilton county; W. D. Denson, Judge.

Action by Henry Gentry against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Suit by appellee for damages for killing a cow commenced before a justice of the peace, where judgment was rendered by default against the railroad company for $20, and removed by certiorari to the circuit court. The plaintiff proved, that the body of the cow, for the killing of which the action was brought, was found about 15 or 20 feet from the line of the defendant's railroad, near an embankment, not far from Cooper's station in Chilton county; that the animal was the property of plaintiff, and her value $20. The only witness to the killing of the cow, was the engineer of the locomotive which killed her, who testified for defendant that he was running the engine that killed her, and he had the skill of many years' experience as an engineer; that he kept a sharp lookout ahead and was in the vigilant discharge of his duties; that he did not see the cow until he was in 25 yards of her, at which time he discovered her, at the edge of an embankment, and immediately, he sounded the cattle alarm and rang his bell, and the cow attempted to cross the track, and was struck by the engine and knocked off; that the cars attached to the engine, constituting the train, were loaded freight cars; that he was running 25 miles an hour down grade, and from the time he discovered the animal, nothing that was known to skilled engineers that could have been done to prevent the accident, was omitted to be done. It was shown that the right of way, near the embankment, where the cow was killed, was grown up with bushes. The defendant introduced another witness by the name of Wright, who testified, that from the point at which the body of the cow was found, the track in the direction from which the train came was straight for a half of a mile; that the cow could have been seen from the edge of the embankment from the direction the train was coming, for a half mile that witness had never run on an engine attached to a train of cars, nor been on an engine when it struck a cow, and had no experience in seeing cows from a running engine on or near the track, but that he spoke from his experience in walking or standing upon a track; and he testified, that from the elevated position of an engine, an object could be more readily seen, than from the ground. On the foregoing...