Louisville & N.R. Co. v. Carter

• Decision Date: 07 May 1925
• Docket Number: 6 Div. 363
• Citation: 213 Ala. 393,104 So. 754
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N.R. CO. v. CARTER.

104 So. 754

213 Ala. 393

LOUISVILLE & N.R. CO. v. CARTER.

6 Div. 363

Supreme Court of Alabama

May 7, 1925

Rehearing Denied June 25, 1925

Anderson C.J., and Sayre, J., dissenting in part.

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

Action for damages by J.D. Carter against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Huey &amp Welch, of Bessemer, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

GARDNER J.

Appellee sued appellant to recover damages for the death of his dog alleged to have been killed by one of the appellant's trains. There was verdict and judgment for the plaintiff in the sum of $25, from which the defendant prosecutes this appeal.

The cause was tried upon count 1, charging simple negligence, the general issue thereto, and special plea No. 3. By this special plea defendant sought to interpose the defense that it had erected a fence upon that portion of its right of way where the dog was killed, and that said fence was erected and maintained in conformity to notice issued by the Public Service Commission, and that no liability attached in the absence of willful conduct. Sections 9635, 9636, Code 1923. Plaintiff interposed demurrer to this plea, taking the point that said statute only applies as to stock and not dogs, and was therefore not applicable, which demurrer was overruled, and, defendant's demurrer to plaintiff's replication being sustained, issue was taken upon said plea. A number of assignments of error relate to rulings growing out of the issue thus joined on this plea. We are of the opinion, however, that the demurrer to this plea should have been sustained, and that the matters therein contained constituted no defense. The provisions of this statute, here sought to be invoked, relate to "stock" only.

In Tex. & Pac. R. Co. v. Scott (Tex.App.) 17 S.W. 1116, it was said:

"A dog is not 'stock,' within the meaning of article 4245, Rev.St., and hence railroads are not required to fence against that character of animals."

So likewise it was held in Selma St. R. Co. v. Martin, 2 Ala.App. 537, 56 So. 601, that a dog was not "stock" within the meaning of section 5476, Code of 1907. See, also, 33 Cyc. 1180; Funk & Wagnalls' New Standard Dictionary, p. 2385.

By the ruling of the court, the defendant received, over plaintiff's objection, the benefit of a defense to which it was not entitled, and, if error intervened (a question we do not consider) in any ruling on evidence or instructions relating to this defense, it was error without injury. A consideration, therefore, of these assignments of error will be pretermitted.

Upon plaintiff showing his dog was killed by defendant's train, the burden of proof was then placed on defendant to show that the killing was not negligently done. L. &amp N.R.R. Co. v. Watson, 208 Ala. 319, 94 So. 551. It is insisted, however, the evidence was insufficient in establishing the fact that the dog was killed by defendant's train, and that the affirmative charge requested by defendant should have been given. That it was rather meager is to be conceded, but when considered as a whole, we are of the opinion a reasonable inference could be drawn therefrom by the jury that the dog was so killed. The dog was found dead one morning on defendant's roadbed, about 2 1/2 feet or 3 feet from the cross-ties, "at the edge of a little fill." The track here was fenced on each side. This was something over a mile from plaintiff's home. The dog was neither crippled nor sick, but healthy and active, and left "home" after dark the night before. One Graves, section foreman for defendant, found the dog near the track on that morning. He testified, "I am on the Old Jonesboro section, which is the section that the dog was killed on." This witness, elsewhere in his evidence, referred to the place "where this dog was killed." Graves "picked the dog up,"...