Montgomery & E.R. Co. v. Perryman
| Decision Date | 07 January 1891 |
| Citation | 91 Ala. 413,8 So. 699 |
| Court | Alabama Supreme Court |
| Parties | MONTGOMERY & E. RY. CO. v. PERRYMAN. |
Appeal from circuit court, Barbour county; J. M. CARMICHAEL, Judge.
Action by M. A. Perryman, against the Montgomery & Eufaula Railway Company for the alleged negligent killing of plaintiff's cow. From a judgment for plaintiff, defendant appeals.
Roquemore, White & McKenzie, for appellant.
H D. Clayton, W. C. Swanson, and A. H. Merrill for appellee.
Appellee had judgment below for damages resulting from injury to a cow. The accident was a peculiar one. A freight-car of the appellant was left by its employes standing alone on an inclined side track of the company in the city of Eufaula,-a side track leading to certain coal-bins, and used only, it seems, for the purpose of delivering coal to the owners of the bins. The car was held in place by means of scotches,-blocks of wood placed under its wheels. These were misplaced in some way, and the car ran down the grade collided with the cow, and so injured her that she had to be killed. There was no evidence as to how the scotches were removed. No living thing was near the car when it began to move, except the cow, and it does not appear that she was sufficiently near to, or did in fact, remove the blocks. The court charged the jury that "in cases like the present the burden of proof is on the railroad corporation to show that it nor its agent had been guilty of negligence." Pretermitting an objection which might be taken to the phraseology of this instruction, resulting from the omission of the word "neither," it will be considered whether it does not misplace the onus of proof. Section 1147 of the Code of 1886 provides: *** And when any stock is killed or injured, or other property destroyed or damaged, by the locomotive or cars of any railroad, at any one of the places specified in the three preceding sections, the burden of proof in any suit brought therefor is on the railroad company to show a compliance with the requirements of such section, and that there was no negligence on the part of the company or its agents." The injury complained of was at one of the places specified in one of said preceding sections, (section 1144,) that is, in a city. The duty there imposed upon the railway company, however, is that its engineer, or other person having control of the running of a locomotive, "must blow the whistle, or ring the bell, at short intervals, on entering into, or while moving within or passing through, and village, town, or city;" and he is further required, "on perceiving any obstruction on the track, to use all means within his power, known to skillful engineers, such as applying brakes and reversing the engine, in order to stop the train." It is quite manifest that these provisions, relating only to moving trains drawn by an engine, equipped with bell and whistle, and controlled at the time by an engineer, can have no application nor impose any duty upon a railway company with respect to a detached car left stationary on a side track for the purposes of unloading; and hence it follows that section 1147 imposes no burden on the company of proving with respect to such car a compliance with the requirements of section 11474. But it will be seen from the section quoted that it casts not only the burden of proving such compliance in a proper case upon the defendant, but in all cases of injury to stock or other property "by the locomotive or cars of any railroad company" puts it upon the company also to show "that there was no negligence on the part of the company or its agents." These terms are sufficiently broad to cover every case of injury inflicted by a car of a railway company, whether connected with an engine, or set in motion by an engine, or equipped with bell and whistle, or under the control of an engineer, or otherwise manned or not; and to impose the burden of disproving all negligence on the defendant in a case like the present one. If, therefore, section 1147 were the only or the latest law on the subject, we should not hesitate to affirm the correctness of the charge under consideration. But it is not the last declaration of the legislature in the premises. The act of February 28, 1887, amendatory of section 1700, Code 1876, which is...
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Southern Ry. Co. v. Smith
... ... 114, 118. The Hughes Case was followed as to persons ( ... Montgomery & E. R. v. Perryman, 91 Ala. 413, 416, 8 ... So. 699); but these cases were overruled, in a stock ... ...
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Ex parte Southern Ry. Co.
... ... R.R. Co. v. Hughes, 87 Ala. 610, 6 So. 413, and M. & ... E.R.R. Co. v Perryman, 91 Ala. 413, 8 So. 699, were ... expressly overruled. The Harris Case was followed in the case ... ...
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