Southern Ry. Co. v. Penney

• Decision Date: 02 June 1909
• Citation: 164 Ala. 188,51 So. 392
• Parties: SOUTHERN RY. CO. v. PENNEY.
• Court: Alabama Supreme Court

51 So. 392

164 Ala. 188

SOUTHERN RY. CO. v. PENNEY.

Supreme Court of Alabama

June 2, 1909

Rehearing Denied Dec. 16, 1909.

Appeal from Circuit Court, Madison County; D. W. Speake, Judge.

Action by Robert Lee Penney against the Southern Railway Company for damages for killing a mule. Judgment for plaintiff, and defendant appeals. Affirmed.

The following charges were refused to the defendant: (2) "The burden of proof is on the plaintiff to show to your reasonable satisfaction that the mule was killed by reason of being struck by a locomotive or train of cars of the defendant, and that said killing was due to the negligence of the defendant's servants or employés." (3) "There is no presumption in this case, under the evidence, that the mule was killed by reason of defendant's negligence or that of its employés." (5) "If you believe from the evidence that plaintiff's mule was killed on the night of July 7th by the train which was being operated by the witness White as engineer, and that the mule was with the mare at the time, and was killed by the same train and under the same circumstances, your verdict under the evidence, must be for the defendant."

Paul Speake and Cooper & Cooper, for appellant.

Walker & Spragins, for appellee.

ANDERSON J.

Section 5476 of the Code of 1907 places the burden of proof, when stock is killed by their locomotives or cars, upon railroads to show a compliance with the statute as to signals, etc., as well as to negative any other negligence, regardless of the place of the killing. This statute has undergone many changes in the different Codes (see note to section 5476 of Code of 1907), and as it existed in the Code of 1896 as section 3443 and as construed in the case of A. G. S. R. R. v Boyd, 124 Ala. 525, 27 So. 408, the burden was not on the railroad, unless the killing was at a place covered by the three preceding sections. But the statute, as it appears in the present Code, is similar to the one considered in the case of Birmingham Mineral R. R. v. Harris, 98 Ala 326, 13 So. 377, and places the burden upon the railroad to acquit itself of negligence regardless of the place of the killing or injury to the stock. It is true, the alleged killing of the mule in question was prior to the present Code, but the case was tried subsequent to the adoption of the present Code of 1907, and as the change relates to a rule of evidence, the statute as it appears in the present Code was applicable to this case. Section 10 of the...