Northern Alabama Ry. Co. v. White

• Decision Date: 30 June 1915
• Docket Number: 363
• Citation: 69 So. 308,14 Ala.App. 228
• Parties: NORTHERN ALABAMA RY. CO. v. WHITE.
• Court: Alabama Court of Appeals

69 So. 308

14 Ala.App. 228

NORTHERN ALABAMA RY. CO. v. WHITE.

No. 363

Court of Appeals of Alabama

June 30, 1915

Appeal from Circuit Court, Franklin County; C.P. Almon, Judge.

Action by Uriah White, Jr., against the Northern Alabama Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Bankhead & Bankhead, of Jasper, for appellant.

Travis Williams, of Russellville, for appellee.

THOMAS J.

The action was by appellee against appellant railroad company for negligently running over and killing a mule. The case was tried on the plea of the general issue, and the defendant complains of the action of the trial court in refusing the general affirmative charge requested by it.

Section 5476 of the Code of 1907 provides, among other things, that:

"When any person or stock is killed or injured *** by the locomotive or cars of any railroad, the burden of proof in any suit brought therefor, is on the railroad company to show *** that there was no negligence on the part of the company or its agents."

Hence it has been held that by virtue of this section the plaintiff makes out a prima facie case by proving, either positively or circumstantially, that the stock was killed or injured while on the track of the defendant company. O'Rear v. Manchester Lumber Co., 6 Ala.App. 461, 60 So. 462; Ill. Cen. R. Co. v Bottoms, 1 Ala.App. 302, 55 So. 260; Birmingham Ry Co. v. Morris, 9 Ala.App. 530, 63 So. 768.

The burden is then shifted to the defendant to acquit itself of negligence; and if the evidence, as offered by it, is sufficient, if believed by the jury, to show as a matter of law that the defendant was not negligent, and such evidence is undisputed, and not in conflict, then a trial court will be put in error for refusing the affirmative charge when requested by defendant. A. G.S.R.R. Co. v. McAlpine, 80 Ala. 73; A.G.S.R.R. Co. v. Moody, 90 Ala. 46, 8 So. 57; L. & N.R.R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438, 50 L.R.A. 620; Harris v. N.C. & St L.R.R. Co., 153 Ala. 156, 44 So. 962, 14 L.R.A. (N.S.) 261; Anderson v. Birmingham Min. R. Co., 109 Ala. 128, 19 So. 519; L. & N.R.R. Co. v. Barker, 96 Ala. 436, 11 So. 453. As of interest in this connection, see, however, Roman v. Lentz, 177 Ala. 71, 58 So. 438; Wynn v. State, 11 Ala.App. 182, 65 So. 687; Patterson v. Millican, 66 So. 914.

While the evidence offered by the defendant was undisputed and tended to show that the engineer who was operating the train that killed the mule was keeping a proper lookout ahead at the time of the accident, and that the mule came suddenly upon the track from out of the darkness and so close in front of the train that the engineer could not stop the train in time to avoid the accident, and that such engineer discovered the mule as soon as it could have been discovered, yet the defendant offered no evidence showing that the train was properly equipped; hence the trial court did not err in refusing the general affirmative charge requested by defendant. Central of Ga. Ry. Co. v. Brister, 145 Ala. 432, A.G.S.R.R. Co. v. Johnston,

128 Ala. 296, 29 So. 771; Coffman v. L. & N.R.R. Co., 184 Ala. 474, 63 So. 527.

The only other assignment of error relates to exceptions taken by defendant to the remarks of the court made to the jury with reference to the special charges given at defendant's request, and which remarks were as follows:

"I am requested by defendant to give you these charges, which I do, to be taken by you in connection with the oral charge of the court, not to vary, contradict, or explain it, but to be taken in connection

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