Southern Ry. Co. v. Blankenship

• Decision Date: 03 June 1915
• Docket Number: 126
• Citation: 14 Ala.App. 261,69 So. 591
• Parties: SOUTHERN RY. CO. v. BLANKENSHIP.
• Court: Alabama Court of Appeals

69 So. 591

14 Ala.App. 261

SOUTHERN RY. CO. v. BLANKENSHIP.

No. 126

Court of Appeals of Alabama

June 3, 1915

Rehearing Denied July 19, 1915

Appeal from Circuit Court, Bibb County; B.M. Miller, Judge.

Action by A.L. Blankenship against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Stokely, Scrivner & Dominick, of Birmingham for appellant.

Jerome T. Fuller, of Centreville, for appellee.

BROWN J.

The plaintiff adduced evidence showing that he owned a milch cow in 1912; that the cow was last seen alive near the railroad tracks between the middle of July and the 1st of August 1912; that about three weeks thereafter the carcass of the cow was found buried on the right of way of the defendant's railway in a cut near the end of the cross-ties; that her legs were all broken, and it looked like she had been stricken and run over by a train; that the defendant maintained a section crew, who went over this part of the road daily, and it was the duty of this crew to bury the carcasses of animals killed by the trains; that the foreman of the crew told plaintiff where the carcass of the cow could be found buried. The evidence shows that the defendant operated trains over this road daily during the months of July and August, 1912, and that the Louisville &amp Nashville Railroad Company ran one daily passenger train each way over the defendant's tracks. The plaintiff also offered evidence showing the value of the cow, and while the record does not show when the complaint was filed in the justice court, it shows that the summons bears date July 15, 1913, and the oral charge of the court, which was reduced to writing and incorporated in the record, states that the suit was commenced July 16, 1913. The defendant offered no proof, but was content to submit the case on the evidence adduced by the plaintiff.

We are of opinion that the only rational inference afforded by the evidence is that the animal was stricken and killed by a locomotive on the railway of the defendant, and that the case is brought within the influence of section 5476 of the Code, casting upon the defendant the burden of acquitting itself of negligence in causing the death of the cow. N., C. & St. L. Ry. Co. v Bingham, 182 Ala. 640, 62 So. 11; O'Rear v. Manchester Lumber Co., 6 Ala.App. 461, 60 So. 462; Southern Ry. Co. v. Hartman, 68 So. 557. It is true that the evidence offered by the plaintiff was purely circumstantial, but it is apparently the best and only evidence available to him. If the cow was killed by one of the defendant's locomotives, the fact was one peculiarly within the knowledge of its agents and...