Mobile & G.R. Co. v. Caldwell

• Decision Date: 11 January 1888
• Court: Alabama Supreme Court
• Parties: MOBILE & G. R. CO. v. CALDWELL.

3 So. 445

83 Ala. 196

MOBILE & G. R. CO. v. CALDWELL.

Supreme Court of Alabama

January 11, 1888

Appeal from circuit court, Russell county; J. M. CARMICHAEL, Judge.

This action was brought by John R. Caldwell against the appellant a domestic railroad corporation, to recover damages for the negligent killing of an ox, the property of the plaintiff, by a moving train of cars belonging to the defendant; and the trial was had on an issue joined on the plea of not guilty. On the trial, as appears from the bill of exceptions, the plaintiff proved "that his ox was killed, at the time and place alleged, by the defendant's train, and that it was worth sixty dollars." One Bracken, the engineer in charge of the train at the time of the accident, was then examined as a witness for the defendant, and testified, in substance, that the accident occurred on a dark and rainy night; that the train was on time, and was running at the rate of 15 or 20 miles an hour, on a down grade, having just climbed a steep up grade; that he was at his proper station keeping a lookout ahead on the track, through a glass window in front, which had been lowered to keep out the rain; that the brakes and other appliances were in good order, and the head-light "of as good capacity as any one in use;" that objects on the track were visible 100 yards distant, but could not be seen distinctly more than 75 or 80 yards; that the glass window "was slightly covered with moisture which prevented him from seeing objects ahead with distinctness;" that he "saw some object on the track, about seventy-five or eighty yards ahead, which looked like a man standing or moving on the track, and which he believed was a man;" that he at once put his head out of the side window, which was opened, and saw that the object was a cow, or some other animal of that kind; "that he instantly did all that could have been done to stop the train,-blew the whistle for brakes, reversed the engine, and used the lever to apply the brakes to the engine and tender,-but the engine run over and killed the animal; that the time which elapsed between the time when he discovered the animal and his use of all means to stop the train "was but a second;" that he did not sound the cattle-alarm "because he had no time to do that, and at the same time to call brakes, reverse the engine, and apply the lever to the engine and tender;" that the brakemen were, at that time, not on top of the cars, but inside of the rear car, on account of the danger of remaining on top; and that if they had been on top, and had immediately applied the brakes, the train could not have been stopped in time to prevent the accident. Another witness for the defendant, a fireman on the train, testified to the same facts in substance.

On this evidence, the court charged the jury, at the instance of the plaintiff, "that if they believed from the evidence that the cattle-alarm was not sounded by the engineer as soon as the ox was discovered on the track, or as [soon as] was practicable, this would be such negligence on his part as would make the railroad liable for the killing of the ox." The defendant excepted to this charge, and requested the following charges in writing, duly excepting to the refusal of each: "(1) Infallibility is not exacted by law of those persons who have the charge and management of railroad trains, nor are said railroad companies to be held responsible in damages for every injury inflicted by them upon the property of others, in the management or control of moving trains. To render such corporations liable, there must be a want of that care, in running and managing their trains which very careful and prudent men take of their own property under similar...