Mobile & O.R. Co. v. Borden Coal Co.
| Decision Date | 30 October 1923 |
| Docket Number | 6 Div. 282. |
| Citation | 19 Ala.App. 481,98 So. 315 |
| Court | Alabama Court of Appeals |
| Parties | MOBILE & O. R. CO. v. BORDEN COAL CO. |
Rehearing Denied Dec. 4, 1923.
Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.
Action by the Borden Coal Company against the Mobile & Ohio Railroad Company for damages for injury to a mule. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.
Ray & Cooner and Leith & Powell, all of Jasper for appellee.
The plaintiff's mule left the corral, was gone about 45 minutes, and on its return was found to have been injured in the manner described in the complaint. It was tracked and traced to a point on the track of the Southern Railway where the circumstances proven indicated it had been injured by a lomocotive running on that track. The facts proven made the fact of injury by a train or locomotive on the track of the Southern Railway a question for the jury. So. Ry. Co. v Hudson, 16 Ala. App. 271, 77 So. 421; So. Ry. Co. v Blankenship, 14 Ala. App. 261, 69 So. 591. The cases above cited were based upon the assumption that trains and locomotives running on the track were presumed to be operated by the owner of the track. In the case at bar, while, from the facts proven, the jury might conclude that plaintiff's mule was injured by a locomotive or train on the track of the Southern Railway Company, the burden would still rest upon plaintiff to reasonably satisfy the jury that the locomotive or train that caused the injury was being operated by the defendant, the Mobile & Ohio Railroad Company, or under its authority, before a presumption of negligence under section 5476 of the Code of 1907, as against the defendant.
In attempting to discharge this burden, the plaintiff was permitted to prove by the records of the train dispatcher of the Southern Railway Company that the only train passing along this particular part of the track of the Southern Railway Company, at the time of the injury complained of, was a locomotive and train owned and being operated by defendant. The only information the train dispatcher had from which he made his record was the dispatch reports from telegraph operators along the line of the Southern Railway, and as to the independent facts he had no knowledge. In Shirley v. So. Ry., 198 Ala. 102, 73 So. 430, the witness testified:
And in the opinion in the Shirley Case the court said, in passing on the question of the admissibility of the pay roll:
"It was not made to appear to the trial court that the entrant Adams did not have personal knowledge of the facts entered on said pay roll, nor that said pay roll was compiled by him from oral or written reports made by some other transactor who knew the facts reported."
The case of M. J. & K. C. R. R. v. Hawkins, 163 Ala. 565, 51 So. 37, has no application here. South B. C. Co. v. McCollum, 200 Ala. 543, 76 So. 901, decides an entirely different question and is based on the decision in the Shirley Case, supra.
We are not convinced that a record of the movement of trains kept...
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