Nashville, C. & St. L.R. Co. v. Hembree

• Decision Date: 14 December 1888
• Citation: 5 So. 173,85 Ala. 481
• Court: Alabama Supreme Court
• Parties: NASHVILLE, C. & ST. L. R. CO. v. HEMBREE.

5 So. 173

85 Ala. 481

NASHVILLE, C. & ST. L. R. CO. v. HEMBREE.

Supreme Court of Alabama

December 14, 1888

Appeal from circuit court, Jackson county; J. B. TALLY, Judge.

Action by A. B. Hembree against the Nashville, Chattanooga & St Louis Railroad Company, to recover damages for the alleged negligent killing of a mare. Plaintiff gave some evidence to show that the defendant's engineer did not blow the cattle alarm nor slacken the speed of the train, and that, if the engineer had been sufficiently careful and on the proper lookout, he could have seen the mare in time to have averted the injury. On the other hand, defendant introduced testimony by the engineer that he was at his post of duty, keeping a steady and diligent lookout; that the first thing that he knew of the proximity of the mare to the track was when his fireman said to him, "Look out, some horses are running towards the track;" that just at that time one horse jumped across the track, and then the mare in controversy was struck, run over by the engine, and killed; that he blew the whistle at the signal-post, about a quarter of a mile before reaching the flag-station, near which the killing took place and that his fireman rang the bell at intervals until the train had passed the station. The engineer further testified that it was impossible for him to have averted the injury that he put on the airbrakes, reversed the engine, and did all that he could to avert it. In addition to a charge as to the duty to slacken the speed of railroad trains when approaching a crossing or station, the court gave the following instructions requested by the plaintiff: "(1) If the jury are reasonably satisfied that the mare was killed by the defendant's train at the time alleged, then unless defendant has reasonably satisfied the jury that its agents or servants, in charge of its train, did all in their power which they could reasonably do to avoid the killing, it is liable, and they must find for the plaintiff. (2) If the jury are reasonably satisfied that the defendant, by its agents or servants, was guilty of negligence in killing the mare, then they must find for the plaintiff." The defendant requested the following instruction, which was refused: "If the jury believe the evidence, they must find for the defendant." Defendant appeals, assigning as error the ruling of the court in giving the charge referred to in the opinion, and the charges requested by the plaintiff, and refusing to give the charge asked by the defendant.

Humes, Walker, Sheffey & Gordon, for appellant.

Brown & Kirk, for appellee.

STONE C.J.

The present action was brought for the recovery of damages for the alleged negligent killing of a mare by appellant's train. The testimony is without conflict on the following propositions: The killing took place in an open field, the ground being level, and neither curve nor cut in that part of the road. The train was approaching and was within 175 or 200 yards of a flag-station, at which it made no stop, except when signaled, and it was not signaled on that occasion. There was a public road crossing ahead of the train, and within three or four hundred yards of the scene of the collision; and the train was running at the rate of 20 to 30 miles an hour, and defendant neither stopped nor was checking the speed of its train as it approached the station. Under the undisputed facts in this case, the circuit court erred in instructing the jury that it was the duty of the railroads to check the speed of their trains when approaching a public crossing. That duty is simply statutory, and only applies to road crossings in "a curve or a cut, where the engineer cannot see at least one-fourth of a mile ahead." Code 1876; § 1699; Railroad Co. v. Deaver, 79 Ala. 216. The duty to blow the whistle or ring the bell when approaching a depot, public crossing, etc., is intended for the safety of persons, stock, etc., who may be at the depot, or who may chance to be crossing the track, as the case may be. It has no reference whatever to stock running at large, and not injured at the crossing. Proximity to the depot or crossing should exert no influence in the decision of a case like the present one.

The first charge given at the instance of plaintiff is erroneous. We have frequently said the impossible need not be attempted. Railroad Co. v. Deaver 79 Ala. 216; Railroad Co. v. McAlpine, 80 Ala. 73; Railroad Co. v. Caldwell, 83 Ala. 196, 3 South. Rep. 445. If the engineer was competent, and was keeping a proper lookout, and did not and could not see the approaching horses until it was too late to give the cattle alarm, or check the train in time to save the mare, the law did not require him to do anything. Engineers are...