Louisville & N. R. Co. v. Morris
| Decision Date | 29 August 1967 |
| Docket Number | 4 Div. 594 |
| Citation | 44 Ala.App. 216,205 So.2d 910 |
| Parties | LOUISVILLE AND NASHVILLE RAILROAD COMPANY v. Flynn D. MORRIS et al. |
| Court | Alabama Court of Appeals |
Jas. A. Mulkey, Geneva, for appellant.
Jos. P. Hughes, Geneva, for appellees.
The Circuit Court of Geneva County, Alabama, found appellant, the L. & N. Railroad Company, guilty of negligently killing four cows with its train and damages of $600.00 were awarded to appellees. From this judgment, this appeal is made.
On December 29, 1963, Q. P. Crutchfield, employee of the Morris Farm for twenty-seven years, and whose duty it was to look after the cosw, testified that he discovered four of the eighteen cows in the southeast pasture missing. He later found three of these cows dead and the fourth suffering a broken back, necessitating his shooting it. He testified that three of the cows were found about three or four feet from the track and the fourth, a quarter of a mile west about ten or fifteen feet from the track. The witness described the terrain where the cows were killed as 'having a kind of ditch' and he stated that the tracks were 'a little higher than the ditch'. He stated that there was a high bank 'on each side' of the ditch; that the ditch was on both sides of the track; that the ditch was about 'three foot' deep and about 'three foot' wide; and that the embankment was 'ten or fifteen' feet high. The witness stated that there was 'hair and fresh blood' on the tracks. He also stated that the train passed by regularly en route to Graceville, Florida, in the evening and returned in the morning. The witness placed the value of the cows at 'about $200.00 a piece' and stated that they were mixed breed and 'brood cows'.
On cross-examination, Crutchfield stated that he did not see the train hit the cows and though the cows were part Braham, they were not 'too wild' and that each cow weighed 'between 900 and 1,000 pounds'.
Mr. Flynn Morris testified that he had been in partnership in the Morris Farm with his sister-in-law since 1951 and that he went to see the cows on Monday, December 30, 1963. He described them as 'very dead', stating that 'they were broke up and scrubbed * * * hide mangled on them, just like they had been hit with something big' and that the tracks where the cows were found were 'straight as an arrow' from the apparent point of impact to the highway crossing a quarter of a mile away. The witness testified as follows as to the value of the cows and to the area where they were killed:
The witness also stated that he found a horn, some hair and fresh blood on the tracks. On cross-examination, he stated as follows:
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He also stated that he knew of no other trains using the track other than those of the L. & N. Railroad Company and that the track was owned by them.
The witness also testified that these cows were 'brood cows', and were a 'tool of Production in the cattle business' with an expectancy of producing calves from 'twelve to fifteen years', and that the cows killed were at the 'prime of production', about seven years old.
At this point, appellee amended his complaint 'to show that three cows were killed and one had to be killed'.
Mr. J. L. Pugh, engineer of freight train No. 32 of the L. & N. Railroad Company, testified that he had been employed by the Company for twenty-three years, nineteen years as an engineer; that he had been operating a freight train between Graceville, Florida, and Geneva, Alabama, on or about December 29, 1963, consisting of one engine, one car and a caboose; that his brakes were in good order; that he left Graceville about 3:00 or 3:30 A.M.; and that his train did his the cows. He stated that he was on the right side of the engine and his speed was 'twenty or twenty-five' miles per hour; that 'the head-light of a Mars light, that is a light that goes round and around' was burning; that he came out of a curve and saw the four cows about '200 feet' away; and that he then did as follows:
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The engineer stated that it was easier to stop a large train than a small one because 'you have more brakes and brake shoes and heavy application, and more cars to hold back'; that a train the size of the one in question, after application of Emergency brakes, would travel 'about two or three hundred feet' before stopping.
On cross-examination, the witness testified that the train struck the cows about one-fourth mile from the highway; that he first saw the cows as the lights swung out of the curve; that lights were needed as it was about 5:30 A.M. and still dark; that you can see with the train's headlight 'four or five hundred yards'; that when he first saw the cows they were running down the track away from the train; and that when he applied the brakes he also hit the whistle, but did not apply 'emergency application'. He stated the following:
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Mr. W. T. Black, fireman on the train in question, testified in substance exactly as did Mr. Pugh as to the speed of the train; the killing of the cows; and stated that when he first saw the cows from the left side of the engine they were about 'a hundred or two hundred feet' away; that the brakes were working well and had been tested before leaving Graceville; and that the Mars light and bell were operating at the time of the incident. He described the engineer's actions as follows:
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The witness further stated that they did not fully stop the train until they were about 300 feet beyond the...
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