Mobile & O.R. Co. v. Christian Moerlein Brewing Co.

• Decision Date: 10 May 1906
• Citation: 41 So. 17,146 Ala. 404
• Parties: MOBILE & O. R. CO. v. CHRISTIAN MOERLEIN BREWING CO.
• Court: Alabama Supreme Court

41 So. 17

146 Ala. 404

MOBILE & O. R. CO. v. CHRISTIAN MOERLEIN BREWING CO.

Supreme Court of Alabama

May 10, 1906

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

"To be officially reported."

Action by the Christian Moerlein Brewing Company against the Mobile & Ohio Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

This was an action to recover for the killing of three mules and two horses. The case made by the testimony for appellee was That they operated a warehouse contiguous to the tracks of the Mobile & Ohio Railroad Company in the city of Mobile. That in this warehouse a considerable number of horses and mules were kept when not engaged in delivering beer throughout the city. There were two openings to the warehouse, inclosed by shutters or gates, one of which was used by the delivery wagon of the company, and the other of which contained a spur track operated by the Mobile & Ohio Railroad Company for the purpose of loading and unloading beer. That on a certain Saturday night three mules and two horses were turned loose in the warehouse, and the wagon entrance was closed. At the time they were turned loose the spur track entrance was closed by a box car, so that the gate could not be shut, but while the car remained in the opening the stock could not escape. This opening remained in this condition from Saturday night to some time during the following Sunday night. On Monday morning following, these mules and horses were found at the crossing of the Louisville & Nashville Railroad Company track over One Mile creek in the suburbs of the city, three of them dead, and two so badly injured that they were afterwards killed. There was a great deal of switching in the daytime over the tracks to the west of the warehouse, and some of the tracks were used as storage tracks, and there was much passage of locomotives and cars over the tracks on the east, the Mobile & Ohio Railroad doing all its business there. The Mobile & Ohio Railroad and the Southern Railway Company have piers on the river just east of the easternmost track, and much switching is done over the tracks leading to those piers in the daytime. Goods are delivered and carried away from the piers after discharge of ships over these tracks, and there was evidence that a great deal of business was done over those piers, though the witnesses did not know what was done after dark. The defendant requested the court to give the affirmative charge after motion to exclude the testimony as incompetent and immaterial. The court overruled the motion and refused to give the charge. The evidence further disclosed that at the point where the stock was killed, the Mobile & Ohio Railroad Company had no tracks, but that the track near which they were found was owned by the Louisville & Nashville Railroad and that the Louisville & Nashville alone operated trains over these tracks. It was further shown by the testimony that no other railroad operated trains over the spur track entering the inclosure of appellee's warehouse, and that the switching crew of the Mobile & Ohio Railroad Company, who alone operated trains over this spur track, removed the car from the opening without closing the gate, which permitted the stock to escape. There was verdict for appellee, and judgment thereon.

E. L Russell and Sydney R. Prince, for appellant.

Pillans Hanaw & Pillans, for appellee.

ANDERSON J.

In discussing what is or is not proximate cause in contemplation of law, our court lays down the rule for its determination to be, quoted from Mr. Cooley and others: "If an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last proximate cause, and refuse to trace it to that which was more remote. The chief and sufficient reason for this rule is to be found in the impossibility of tracing consequences through successive steps to the remote cause and the necessity of pausing in the investigation of the chain of events at the point beyond which experience and observation convince us we cannot press our inquiries safely," etc. And we adopt what Addison says on the subject: "If the wrong and the resulting damage are not known by common experience to be naturally and usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, then the wrong and damage are not sufficiently conjoined and concatenated as cause and effect to support an action." Cooley on Torts, p. 73, § 69. Mr. Bishop, in stating the same principle, says: "If, after the cause in question has been in operation, some independent force comes in and produces an...