Mobile & B.R. Co. v. Ladd

• Decision Date: 07 April 1891
• Citation: 9 So. 169,92 Ala. 287
• Court: Alabama Supreme Court
• Parties: MOBILE & B. R. CO. v. LADD.

9 So. 169

92 Ala. 287

MOBILE & B. R. CO. v. LADD.

Supreme Court of Alabama

April 7, 1891

Appeal from circuit court, Mobile county; WILLIAM E. CLARKE, Judge.

This action was brought by the appellee, John M. Ladd, against the appellant railroad company, and sought to recover damages for the alleged negligent killing of an ox, the property of the plaintiff. Upon the engineer, who was running the engine at the time of the accident, testifying that it was a very dark night, the plaintiff was allowed, against the objection and exception of the defendant, to introduce an almanac to show that it was a moonlight night; and the plaintiff was also allowed to testify, against the objection and exception of the defendant, that on that night, and at the time of the accident, the moon was shining brightly. Upon the evidence as adduced the defendant asked the general affirmative charge in its favor, and also requested the following charge: "The court charges the jury that no recovery can be had in this case for any failure of the engineer to discover the ox sooner than it was discovered, as shown by the testimony." The court refused to give each of these charges, and the defendant separately excepted to such refusal. There were verdict and judgment for the plaintiff and the defendant, prosecuting this appeal, assigns the rulings of the court upon the evidence and upon the charges requested by the defendant as error.

Le Vert Clark, for appellant.

Webb & Clarke, for appellee.

McCLELLAN J.

Whether the facts that the moon rose before the accident complained of, and that it was a full moon, were relevant to any issue in the case is an immaterial inquiry on this appeal. They were offered and admitted in rebuttal of evidence adduced by the defendant below to the effect that "it was a very dark night." If evidence as to the moon's phase, and the hour at which it rose that night, was irrelevant, so also, was this testimony on the part of defendant, and it is never erroneous to receive irrelevant evidence to rebut evidence of like kind offered by the opposite party. Ford v. State, 71 Ala. 385; Gandy v. State, 86 Ala 20, 5 South. Rep. 420; Sharp v. Hall, 86 Ala. 110, 5 South. Rep. 497; Morgan v. State, 88 Ala. 223, 6 South. Rep. 761.

2. It was clearly competent to prove the time of the rising and phase of the moon on the night in question by the introduction of an almanac. Munshower v. State, 55 Md. 11; State v. Morris, 47 Conn. 179; Sisson v. Railroad Co., 14 Mich. 497.

3. The engineer testified that the ox, when first seen by him, was standing about 10 yards from the track, but immediately ran upon the track and stopped; that he put on brakes and sounded the cattle alarm as soon as it got on the track, but it remained standing on the track until struck by the engine and killed, the distance between the engine and the animal when it first got on the track not being sufficient to stop the train by any means known to skillful engineers. Per contra, the plaintiff testified that he was within an half mile of the accident when it occurred; that his attention was directed to the train for the purpose of ascertaining whether it gave a signal indicating that it would stop at a station near by, as he was expecting some one by that train; and that the whistle was not sounded at all. He further testified that upon visiting the scene of the accident he saw tracks, etc., indicating that the ox had run some distance along the track in front of the engine before it was struck, and the injuries inflicted were such as would naturally have resulted from being run down. It was for the jury to determine whether th...