Southern Ry. Co. v. Wyley

• Citation: 75 So. 326,200 Ala. 14
• Decision Date: 19 April 1917
• Docket Number: 8 Div. 6
• Parties: SOUTHERN RY. CO. v. WYLEY.
• Court: Supreme Court of Alabama

75 So. 326

200 Ala. 14

SOUTHERN RY. CO. v. WYLEY.

8 Div. 6

Supreme Court of Alabama

April 19, 1917

Appeal from Circuit Court, Madison County; R.C. Brickell, Judge.

Action by T.F. Wyley against the Southern Railway Company for damages for the death of a horse. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 450, § 6. Affirmed.

The facts sufficiently appear. The following are the charges refused to defendant:

(5) Affirmative charge for defendant.

(9) There was no statutory duty on defendant's engineer to blow the whistle or ring the bell at the point where he discovered the peril of plaintiff's horse.

(4) If the jury believe from the evidence that the horse was in the path or washway, and was going up out of the cut, and away from the track, there was no duty upon the engineer to apply the brakes or blow the whistle at that time.

The bill of exceptions is silent as to whether it contained any or all of the evidence, or any part of the evidence.

Cooper & Cooper, of Huntsville, for appellant.

Taylor & Watts, of Huntsville, for appellee.

SAYRE J.

If we might assume that the bill of exceptions in this case contains all the evidence heard at the trial, then the several contentions raised by defendant, appellant, would depend upon a construction of the bill of exceptions in regard to one point, viz. whether there was evidence from which the jury might have inferred that plaintiff's horse was upon the track for an appreciable time before it was struck and killed by defendant's locomotive. Defendant takes the negative view of this question, and hence insists that section 5473 of the Code, which requires that the engineer in charge of the train must, on perceiving any obstruction on the track, use all the means within his power known to skillful engineers in order to stop the train, and section 5476, putting on the railroad company the burden of proving that there has been no negligence when stock is killed or injured by its locomotive or cars, are without application in the premises, citing E.T., V. & G.R.R. Co v. Bayliss, 77 Ala. 429, 54 Am.Rep. 69, and cases in that line. It was shown without dispute that the train which killed the horse was going east. Plaintiff testified as follows:

"I noticed tracks of the horse in the cut. These tracks were going east about 25 or 30 yards from where I found the horse lying."

And on this defendant holds that, since the horse could not go east after he was killed, the tracks about which plaintiff testified were not made by his horse on the occasion when it was killed. But plaintiff also testified:

"I saw the

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