Southern Ry. Co. v. Harris

• Decision Date: 27 April 1922
• Docket Number: 8 Div. 455.
• Citation: 207 Ala. 534,93 So. 470
• Parties: SOUTHERN RY CO. ET AL. v. HARRIS.
• Court: Alabama Supreme Court

93 So. 470

207 Ala. 534

SOUTHERN RY CO. ET AL. v. HARRIS.

8 Div. 455.

Supreme Court of Alabama

April 27, 1922

Rehearing Denied May 18, 1922.

Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.

Action for damages by James J. Harris against the Southern Railway Company and John Barton Payne, as Director General of Railroads. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals, under section 6, Acts 1911, p. 449. Reversed and rendered in part, and affirmed in part.

S. A Lynne, of Decatur, for appellants.

William E. Skeggs, of Decatur, for appellee.

MILLER J.

James J. Harris filed this suit on October 14, 1919, against the Southern Railway Company, a corporation, and Walker D. Hines Director General of Railroads, for damages for killing a dog. On January 13, 1921, John Barton Payne, as Director General of Railroads, as Agent, under section 206 of the Transportation Act of 1920 (41 Stat. 461), was on application by order of the court made a party defendant in lieu and instead of the original defendant.

The defendants demurred to the complaint. It was overruled by the court. There is only one count in the complaint. It avers that plaintiff owned a dog, its value is alleged, and that it was negligently killed by the defendants, its agent or servant, while acting within the scope of his employment and authority, by negligently running its engine over it.

This count alleges "actionable negligence," and the demurrers to it were properly overruled. L. & N. R. Co v. Fitzpatrick, 129 Ala. 322, 29 So. 859, 87 Am. St Rep. 64; Cent. of Ga. Ry. Co. v. Martin, 150 Ala. 388, 43 So. 563; Tenn. A. & G. R. Co. v. Daniel, 200 Ala. 600, 76 So. 958.

Each defendant pleaded the general issue. There was a verdict against the defendants, judgment thereon by the court, and each defendant appeals therefrom.

A dog is personal property. L. & N. R. Co. v. Fitzpatrick, 129 Ala. 322, 29 So. 859, 87 Am. St. Rep. 64. In Selma St. & S. R. Co. v. Martin, 2 Ala. App. 544, 56 So. 603, Judge Walker wrote:

"When it is shown that one's dog was killed by the car of any railroad company, the statute in question [section 5476 of Code of 1907] puts the burden of proof in any suit brought therefor on the railroad company to show that there was no negligence on the part of the company or its agents."

This opinion was modified in part by this court in Ex parte Selma St. & S. R. Co., 177 Ala. 473, 59 So. 169, in which it held that section 5476 of the Code of 1907 was not "intended to apply to street railroad companies operating as such on the streets of a city." See, also, Appel v. Selma St. & S. R. Co., 177 Ala. 457, 59 So. 164.

The proof shows the dog belonged to the plaintiff. Its value was from $50 to $150. It was killed in October or November, 1918. The evidence tended to show it was killed by an engine of the Southern Railway Company while being operated on its track. The dog's head was mashed off. When found its head was between the rails of the Southern Railway Company's track, and its body was just outside of the rail. This evidence made out a prima facie case of a right to recover on the part of plaintiff, and shifted the burden of proof onto the railroad company to show the death of the dog was caused by no negligence on the part of the railroad company or its agents. The defendants offered no evidence except on the value of the dog. Hence the general affirmative charge, with hypothesis, requested in writing by defendant John Barton Payne, as Director General of Railroads, as Agent, was properly...