South & N.A.R. Co. v. Bees

• Decision Date: 28 July 1887
• Citation: 82 Ala. 340,2 So. 752
• Court: Alabama Supreme Court
• Parties: SOUTH & NORTH A. R. CO. v. BEES.

2 So. 752

82 Ala. 340

SOUTH & NORTH A. R. CO. v. BEES.

Supreme Court of Alabama

July 28, 1887

Appeal from circuit court, Blount county.

Action against railroad company for damages to stock.

This action was brought by James Bees against the South & North Alabama Railroad Company, on June 12, 1885, and claimed, in the complaint, "damages for negligently killing a valuable horse, the property of plaintiff, on the __________ day of February, 1885." On the trial, on October 16 1886, the complaint was amended, against the objection and exception of defendant, and claimed "damages for the negligent killing of a valuable mare by the locomotive or cars of defendant on its line of railroad in Blount county Alabama, on the twentieth day of February, 1885. Said mare was *** the property of plaintiff." The defendant pleaded the general issue, and the statute of limitations of six months. On the trial the evidence, as set forth in the bill of exceptions, tended to show the killing of the mare as described in the complaint; that, within less than six months of the killing of said animal, one Thomas Jones, at request of the plaintiff, made a demand for damages on the claim agent of defendant, and said agent replied by saying that defendant had no report of the killing; that the mare was killed by violent means, found near the defendant's railroad, and there were signs of hair and blood on the rails and road-bed. The defendant asked the court, in writing, to charge the jury: "(1) Under the pleadings and evidence in this case there is no presumption of negligence against the defendant from the fact of the killing or injuring of the animal mentioned in the complaint. (2) If the evidence wholly fails to show how the injury occurred, and fails distinctly to show that the engineer either saw the mare, or could by ordinary diligence have seen the mare, in time to stop the train or prevent the injury, then the jury must find for defendant. (3) If the jury believe the evidence, they must find a verdict for defendant." The court refused to give said charges, and defendant excepted. Verdict and judgment being rendered against defendant, this appeal is prosecuted assigning the exception noted above, and the charges refused, as error.

Hamil & Lusk, for appellant.

Dickinson & Ward, contra.

STONE C.J.

There is nothing in the objection urged that the amendment substituting the word "mare" for the word "horse," made a new case, so as to let in the defense or...