Southern Ry. Co. v. Taylor

• Citation: 148 Ala. 52,42 So. 625
• Parties: SOUTHERN RY. CO. v. TAYLOR.
• Decision Date: 15 November 1906
• Court: Supreme Court of Alabama

42 So. 625

148 Ala. 52

SOUTHERN RY. CO. v. TAYLOR.

Supreme Court of Alabama

November 15, 1906

Appeal from Circuit Court, Colbert County; Ed. B. Almon, Judge.

"To be officially reported."

Action by David M. Taylor against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action for damages for injuries to a mare, which injuries, it is alleged, rendered her valueless. The injuries are alleged to have been caused by the defective condition of a bridge across a public road, where the same approached and crossed defendant's right of way and track. The facts necessary to an understanding of the opinion are sufficiently stated therein. The witness Kirkland was introduced by the defendant, and, after testifying to certain facts, further testified that he had had considerable experience with horses, had lived on a farm when he was a boy, and that his father was a horse trader, whereupon the defendant propounded the following questions: "From your observation and experience with horses, could or not the injury on this horse's leg have caused her death?" The bill of exceptions here recites the plaintiff objected to said question, the court sustained the objection, and the defendant duly excepted. The witness was then asked this further question: "What, in your opinion, was the cause of the death of the mare?" Objection was also sustained to this question.

In his oral charge to the jury the court said: "If you believe from the evidence that at the time of this injury, the defendant, Southern Railway Company, was operating trains over that railroad, and at that time, or a short time prior to that time, its employés and roadmen had worked on that bridge, and the company were keeping up that bridge, and that after so doing they allowed said bridge to get out of repair whereby this mare was injured, then, whether defendant built the bridge or not, it would be as liable as if it had built it, and in that event, the plaintiff would be entitled to recover, unless you believe from the evidence that he was guilty of contributory negligence." The defendant also requested the court to give the following written charges which were refused: (1) Affirmative charge as to count 1. "(2) If you believe the evidence, you are not authorized to award plaintiff any damages by reason of the death of said mare. * * * (4) If you will believe from the evidence that John Olive or the plaintiff caused the mare to fall in the ditch by having her breaching or harness cut after her leg got hung, and that said fall was the cause of her death plaintiff cannot recover anything on account of her death. (5) It is not the duty of the defendant, under the evidence in this case, to keep said bridge in a safe condition. * * * (8) There is no evidence in this case that the defendant's negligence was the cause of the death of said mare."

There was verdict and judgment for plaintiff for $75. The defendant made a motion for new trial, because the verdict was contrary to the great weight of the evidence, and because the verdict is excessive, and because the jury, under the law and the evidence, was not authorized to award any damages on account of the death of the mare. The motion was overruled.

Milton Humes and Paul Speake, for appellant.

James Jackson, for appellee.

WEAKLEY C.J.

It must be held, upon the authority of Southern Railway Co. v Morris (Ala.) 42 So. 17, and Southern Railway Co. v. Morris (Ala.) 42 So. 19, that the duty rested upon the defendant to keep the bridge in repair, and that the failure to prove the defendant constructed the bridge was not fatal to a recovery. The case last cited also vindicates that portion of the court's oral charge to which an exception was reserved. Upon the trial there seems to have been no controversy as to the identity of the bridge spoken of by witnesses for both parties with that alleged in the complaint, and there was no dispute as to the defective condition of the bridge; indeed, appellant's counsel in their brief concede it was defective.

The evidence of defendant was entirely directed to the question of the extent of the injury to the mare and the amount...