Western Ry. Co. v. Lazarus

• Decision Date: 19 December 1889
• Citation: 6 So. 877,88 Ala. 453
• Parties: WESTERN RY. OF ALABAMA v. LAZARUS.
• Court: Alabama Supreme Court

6 So. 877

88 Ala. 453

WESTERN RY. OF ALABAMA v. LAZARUS.

Supreme Court of Alabama

December 19, 1889

Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge.

Action by B. D. Lazarus against the Western Railway of Alabama to recover for the alleged negligent killing of a cow.

Defendant demurred to the complaint on the ground that it did not aver that the cow was killed by the negligence of the defendant or its servants, or that said injury resulted from said negligence. The averments of the complaint in reference to the negligence of defendant are shown in the first paragraph of the opinion. The court overruled this demurrer, and defendant excepted.

Plaintiff introduced evidence that the animal killed was his property and was a Jersey cow. There was also testimony by the defendant that, under the circumstances of the killing, it was impossible to stop the train before it killed the cow that the cow was grazing near the road-bed and track; that the train was running down grade at the rate of 35 or 40 miles an hour; that the cow continued grazing near the track until the engine was within about 50 or 75 yards of her, when she started up the embankment on which the track was laid and towards the track; that the engineer, when he saw the cow was coming on the track, blew the cattle-alarm whistle, put on brakes, and did everything known to skillful engineers to stop the train, but, before it could be stopped, the engine struck the cow, and killed her; and that from the time the animal started up the embankment towards the track it was impossible to stop the train, or prevent the injury, before she was struck.

To prove the value of the cow, plaintiff introduced one Clayton, who, in giving his estimate of value, said he based "his opinion upon the Jersey craze which existed about that time." The evidence of this witness the defendant moved to exclude; but the court overruled his motion, allowed it to go the jury, and defendant excepted. On the examination of one Ross, plaintiff asked him what thorough-bred Jerseys were worth. To which he answered, "Several hundred dollars." Defendant objected to both the question and the answer thereto, and moved the court to exclude each; but the court overruled the motion, and defendant excepted.

The court charged the jury, among other things, "that the law required the engineer to keep a steady lookout ahead for obstructions on the track;" to which charge defendant excepted.

Plaintiff asked the following charges in writing, which the court gave, and the defendant severally and separately excepted to each of them: "(1) A watchful lookout must be steadily maintained for the discovery of obstructions on the track; and it is no excuse for the railroad that the cow was not seen, if, by prudent watchfulness, she could have been discovered. Failure to maintain a steady lookout is itself culpable negligence. (2) It is the duty of the railroad's agents, running the train, to keep a watchful lookout for the discovery of stock on the track, or dangerously near the track; and it is no excuse for the railroad that the cow was not seen in time to prevent killing her, if, by prudent watchfulness, she could have been discovered. And, if the railroad employes failed to see the cow on the track, or in dangerous proximity thereto, by failing to keep a prudent lookout, in time to avoid killing her, then the plaintiff is entitled to a verdict. (3) It was the duty of the engineer to use all proper means to prevent the injury to the cow, if he saw the cow, or, by the use of due diligence, ought to have seen her, in dangerous proximity to the track, and under circumstances indicating danger of her getting on the track. And, if he saw her, or could have seen her, by due diligence, far enough ahead, on or dangerously near the track, for him to have stopped or slacked the train, he should have done so; and, failing so to do, and by such failure killed her, the jury should find for the plaintiff."

The defendant then asked the court to give the following charge in writing: "If the jury believe the evidence, they will find for the defendant." The court refused to give this charge, and the defendant thereupon excepted.

There was verdict and judgment for plaintiff, and defendant now prosecutes this appeal, and assigns the rulings of the court on the pleading, on the evidence, and the giving the several charges requested by the plaintiff, and the refusal to give the charge asked by the defendant, as error.

Harrison & Ligon, for appellant.

W. J. Samford and J. M. Chilton, for appellee.

SOMERVILLE J.

1. The averment in the complaint that the engine was "so negligently operated by defendant's agents that plaintiff's cow was killed," coupled with the further allegation that "said cow was killed on account of said negligence," is, in our judgment, sufficiently explicit to show that the damage done the animal resulted from the alleged negligence of such agents, and therefore of the defendant itself. Any averment is sufficient which shows that the negligence of the defendant either caused or reasonably contributed to the injury complained of, or...