Nashville, C. & St. L. Ry. v. Bingham

• Decision Date: 17 April 1913
• Citation: 62 So. 111,182 Ala. 640
• Parties: NASHVILLE, C. & ST. L. RY. v. BINGHAM.
• Court: Alabama Supreme Court

62 So. 111

182 Ala. 640

NASHVILLE, C. & ST. L. RY. v. BINGHAM.

Supreme Court of Alabama

April 17, 1913

Appeal from Circuit Court, Madison County; A.H. Alston, Judge.

Action by W.H. Bingham against the Nashville, Chattanooga & St. Louis Railway for damages to stock. Judgment for plaintiff and defendant appeals. Affirmed.

Count 1 is as follows: "Plaintiff claims of defendant the sum of $400 damages for this, that on, to wit, the 27th day of March, 1911, defendant negligently ran its engine and train of cars operated on its railroad in this county, leading north from Huntsville, upon, over, or against plaintiff's jack, wounding it and injuring it to such extent as to render it worthless and of no value." The third count is like the first, except that it declares for the killing of a jennet.

Spragins & Speake, of Huntsville, for appellant.

Betts &amp Betts, of Huntsville, for appellee.

DE GRAFFENRIED, J.

This case was tried upon counts 1 and 3, and the reporter will set out those counts.

It is contended by appellant that the counts were demurrable because the place of the injury should have been stated with more definiteness and certainty than it is stated in said counts. Counts similar to those under discussion have been held by this court to be free from attack upon the stated ground of demurrer, and we see no reason why we should depart from those decisions. Southern Railway Co. v. Hoge, 141 Ala. 351, 37 So. 439.

(1) All domestic animals are presumed to possess some value. Indeed in ancient times, in the East, the wealth of a man was measured by the number of the various kinds of domestic animals and, possibly, by the number of slaves that he possessed. The said counts were not subject to demurrer because of the plaintiff's failure to allege therein that the animals described in the counts were chattels of value.

(2) The plaintiff's evidence tended to show that he lived near and had a pasture near, the railroad track of the defendant; that on the morning of March 28, 1911 he found his jack at his lot gate, suffering from a "big gash or mashed-in place on his hip just to the left of his tail" ; that he at once took the "back track" of the jack and "traced his footprints directly back to the railroad, to a mashed and scarred-up place on the ground," which "mashed and scarred-up place" was "right down by the culvert, by the side of the railroad" ; that this "back track" of the jack led back from the lot gate of the plaintiff directly to the "mashed and scarred-up place on the ground" which was "right down by the culvert, by the side of the railroad" but that this "back track" went no further and did not lead up to or onto the railroad track. The evidence of the plaintiff further tended to show that other tracks of the jack showed that the jack went out of the pasture through a burned place in the pasture fence onto the track of the railroad at a point about 15 feet north of the "mashed and scarred-up place" by the culvert by the side of the railroad, but that there were no tracks of the jack leading from the point where he went onto the railroad track, to said "mashed and scarred-up place," or to any other point. There was, then, according to the evidence, a gap, break, or hiatus in the tracks of the jack for a distance of 15 feet. At one end of the gap, break, or hiatus the tracks of the jack showed that he was on the railroad track. At the other end of the hiatus was the "mashed and scarred-up place," not on, but by, the culvert by the side of the railroad, and, as the jack's tracks led away from the "mashed and scarred-up place" to the plaintiff's lot gate, and as the jack was injured when the plaintiff found him at the lot gate, the jury had a right to conclude that the "mashed and scarred-up place" was made by the jack and that he was in some sort of trouble when he made "the mashed and scarred-up place."

The question is: How did the jack get through the above gap, break, or hiatus of 15 feet without making a track?

A passenger train of the defendant, on the night the jack received his injuries, going south, passed the above two points. The jack was injured as above stated. Something struck him a severe blow in the rear, and we think that there was abundant evidence from which the jury had the right to conclude that the jack was knocked from the track to "the mashed and scarred-up place" by a train of the defendant going south. In this way the gap, break, or hiatus in the tracks of the jack and the injuries suffered by the jack can be reasonably accounted for. As these conclusions were reasonable inferences to be drawn from the evidence, the question as to what caused the injuries to the jack was a question for the jury.

(3) The plaintiff was permitted to testify that, in his opinion, if his jack was struck by a passing train of the defendant, he was struck by a train going south. The defendant's track, at the point of injury, runs in a northern and southern direction. It is a physical impossibility for a train going south, if it strikes an animal in front of it, to knock that animal to a point 15 feet north of the point of contact. In addition to the above, the evidence shows without dispute that the only train which passed the point where it is claimed that the jack was injured, between the time when the plaintiff saw him uninjured in the pasture and the time when he found him in his injured condition, was a train going south. No error can therefore be predicated upon the above ruling of the trial court.

(4) The trial court, at the written request of the plaintiff, gave to the jury the following written charge: "It is the duty of the engineer in charge of a train to keep a lookout for animals, and of using diligent effort to avoid and injury to them when seen in peril on or near the track."

It is not the absolute, unqualified duty of an engineer, at all times, to keep a lookout for animals. His position and the law require of him the performance of other duties besides that of keeping such a lookout. The law only requires the...