Newsome v. Louisville & N.R. Co.

• Decision Date: 05 November 1924
• Docket Number: 8 Div. 213
• Court: Alabama Court of Appeals
• Parties: NEWSOME v. LOUISVILLE & N.R. CO.

102 So. 61

20 Ala.App. 349

NEWSOME v. LOUISVILLE & N.R. CO.

8 Div. 213

Court of Appeals of Alabama

November 5, 1924

Appeal from Circuit Court, Morgan County; James E. Horton, Jr. Judge.

Action by T.J. Newsome against the Louisville & Nashville Railroad Company for damages resulting from the frightening of a horse by a locomotive engine. From a judgment for defendant plaintiff appeals. Reversed and remanded.

Where an injury to plaintiff is proximately caused by defendant's negligence, plaintiff may recover, even though he may himself have been guilty of negligence, if his negligence was only a remote cause or a mere condition of the accident.

On the trial of the case defendant's witness Stubblefield testified that he had owned the horse in question, and that the horse was skittish and scared of locomotives, that he saw the horse shortly before the injury and he seemed to be in good shape; and that "I think he was about as good a horse as I ever drove." On motion of defendant, the court excluded the quoted statement, and to this ruling plaintiff reserved an exception.

These charges were given at defendant's request:

"1. I charge you, gentlemen, that the burden of proof is on the plaintiff to prove to your reasonable satisfaction that there was an unusual emission of steam, or that the engine in its operation, made an unusual or unnecessary noise.

"2. The defendant has as much right to use the track on the street as plaintiff had to use the street, and defendant is not liable for the injuries caused by the frightening of the horse unless the evidence shows to your reasonable satisfaction that an escape of the steam was unnecessarily caused by the defendant's agents or servants.

"3. I charge you, gentlemen of the jury, there is no presumption in this case that said plaintiff's horse was frightened by the emission of an unusual amount of steam from defendant's engine.

"4. I charge you, gentlemen of the jury, that noise may be unusual to persons and horses not accustomed to it, and usual as signals and incident to the running, movements, and operations of an engine.

"5. I charge you, gentlemen of the jury, that the authority to operate a railroad includes the right to make the noises incident to the movement and operation of its engine, as in the case of escape of steam and rattling of cars; and also to give the usual and proper admonitions of danger, as in the sounding of whistles and the ringing of bells, and a railroad, in the exercise of such rights is not liable for injuries occasioned by horses, when being driven or hitched along the highway, taking fright at noises occasioned by the lawful and reasonable exercise of its rights and duties, and I charge you that the plaintiff's horse hitched upon the highway, and the defendant operating its trains over the tracks, were each bound to use their privileges with reasonable precautions, prudence, and diligence, and the defendant had the right to make all the reasonable and usual noises incident to the running of its train.

"6. I charge you that it is the duty of the plaintiff to establish by the evidence, to your reasonable satisfaction that the act complained of was unnecessary, and if you are not so reasonably satisfied from the evidence that this act was so shown, your verdict should be for the defendant.

"7. I charge you, gentlemen of the jury, that the burden of proof is upon the plaintiff to prove to your reasonable satisfaction, that the making of noise complained of was unnecessary to the skillful operation of defendant's engine.

"8. I charge you, gentlemen of the jury, that the defendant had the right to use the track along the street at the time of this occurrence, and it had the right in the use of the said track, to make the usual noises and emission of steam which are incident to the operation of its engine.

"9. I charge you, gentlemen of the jury, if you believe from the evidence that the plaintiff knowingly hitched a horse, easily frightened, in close and dangerous proximity to defendant's track, then he would be guilty of contributory negligence.

"10. I charge you, gentlemen of the jury, that the defendant in this case had the right to use its tracks and to make all the usual noises incident to the running and moving of its engine, and to make all the usual emissions of steam which is incident to the running and moving of its train, and if you are reasonably satisfied from the evidence that only such amount of steam was emitted, and only such noises were made, then it is your duty to return a verdict for the defendant."

"A. I charge you, gentlemen of the jury, that railroad companies had [have] a right to operate their trains; that such companies have the right to make all the usual noises and emissions of steam incident to the operation of trains; and that negligence alleged to have resulted in frightening [an] animal cannot be predicated upon the operation of a train, unless in so doing unnecessary noises or emissions of steam were made, and these noises, or the movement of the train, or the emission of steam, were recklessly or wantonly made or done after the discovery of peril, or were made or done with the intention of frightening the animal in question.

"B. I charge you, gentlemen of the jury, the authority to operate a railroad includes the right to make the noise incident to the movement and workings of its engine, as in the escape of steam, and the rattlings of cars; and also to give the usual and proper admonitions of danger, as in the sounding of whistles and the ringing of bells. It is not liable for injuries occasioned to horses hitched along the highway or street taking fright at noise occasioned by the lawful and reasonable exercise of these rights and duties."

S.A. Lynne, of Decatur, for appellant.

Eyster & Eyster, of Albany, for appellee.

FOSTER J.

This is an action by T.J. Newsome against the Louisville & Nashville Railroad Company for damages for injuries to a horse and damage to a buggy and harness, because of the alleged negligent acts of the defendant.

The complaint contained three counts. On the issues submitted to the jury a verdict was rendered for the defendant and from the judgment rendered on the verdict the plaintiff prosecutes this appeal. Each count of the complaint contained averments of fact showing a substantial cause of action.

The first count avers that the defendant company was operating with steam a locomotive along a street in the city of Decatur, and that the engineer in charge negligently allowed or caused the steam to escape, which was calculated to frighten a horse of ordinary gentleness, as was the horse of plaintiff, and that the sight and noise frightened the horse which was hitched to a regular hitching post on the street, and caused him to run away and break the buggy to which he was attached, and so frightened the horse as to permanently injure him and render him of less value.

The second count avers that while the horse was standing hitched to the post on the street an agent or servant of the defendant in charge of the locomotive and in the line and scope of his employment, negligently caused the locomotive to emit, with a loud noise,...