Western Ry. of Alabama v. Stone

• Decision Date: 19 December 1905
• Parties: WESTERN RY. OF ALABAMA v. STONE.
• Court: Alabama Supreme Court

39 So. 723

145 Ala. 663

WESTERN RY. OF ALABAMA v. STONE.

Supreme Court of Alabama

December 19, 1905

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

"Not officially reported."

Action by H. L. Stone against the Western Railway of Alabama. From a judgment for plaintiff, defendant appeals. Affirmed.

Action for injuring or killing three cows. The complaint was in the following words: "Plaintiff claims of the defendant the sum of $250 as damages, for that, to wit, on the 14th day of March, 1903, the defendant was engaged in the operation of a railroad and locomotive and cars thereon, between the cities of Montgomery and Selma, Ala.; that one of defendant's agents, servants, or officers, then and there in charge of one and such locomotive, and whose name is to plaintiff unknown, so negligently operated such locomotive on said road at or near Stone's Tank, in the county of Montgomery Ala., that by reason thereof it then and there ran against struck, and greatly injured or killed three cows, the property of plaintiff, to the damage of plaintiff," etc.

There was demurrer to this complaint, assigning as grounds that first, he failed to aver with sufficient certainty and particularity where the injury occurred; second, failed to show with sufficient certainty who the officers or agents were who are charged with negligence in operating its engines; third, that it fails to show that said agents or officers were acting within the scope of their employment at the time of the injury; fourth, that it does not aver with certainty that the injury was negligently done; and, fifth because it assumes negligence in striking said cows and does not affirmatively aver any act of negligence on the part of the defendant.

These demurrers being overruled, the defendant filed the general issue, and a special plea, setting up that the animals killed ran suddenly and unexpectedly on the track immediately in front of the train; that the engine was equipped with a first-class headlight, which enabled the engineer to see sufficiently far ahead of him to have discovered the animals on the track or within the rays of said headlight in time to have stopped the train to prevent injury; that the engineer was keeping a proper lookout, but that the cows got on the track unexpectedly and so near the engine that by the use of all means known to skillful engineers the engineer could not have stopped the train in time to prevent the injury. There were demurrers to this plea, which were sustained.

The defendant requested the following charges, which were refused: "(2) The measure of damages in this case is not necessarily the value of animals when alive, but the difference in value between the living animal and the dead carcass; and if the jury believe from the evidence that the plaintiff might have realized the appreciable value of the dead carcass by the exercise of reasonable diligence, the amount of such value must be deducted. (3) The burden of proof is upon the plaintiff to show that the animals were killed by the engine of the defendant, and also to show the amount of damages sustained; and if the plaintiff has failed to reasonably satisfy the jury what such damages were, they must find for the defendant. (4) Railroad employés are not required to attempt the impossible; and if the jury believe from the evidence that the engineer was keeping a proper lookout for obstructions on the track, and that the animals came on the track suddenly, and so close to the train that the use of preventive efforts could not have avoided the injury, they must find for the defendant. (5) The value of the animals alleged to have been killed is not to be determined by the purpose for which they were used by plaintiff for dairy purposes, but by the reasonable market value of said animals at the time of the injury shown. * * * (8) Notwithstanding the fact, if it be a fact, that the engine did not have a headlight sufficiently strong to see an animal on the track in time to stop the train before striking it, yet if the animals were not on the track, but came suddenly on it so near the approaching train that it was impossible for the engineer to have stopped or slackened its speed in time to prevent the injury, the fact of not having a strong headlight, if it be a fact, can have no influence in this case, and cannot authorize the verdict for defendant. (9) Under the facts of this case offered in evidence no duty rested on the engineer to keep a lookout for animals beyond the light thrown from his engine; that is, on the outsides of the track."

The court in its oral charge used the following language: "But if the engineer is negligent in keeping a lookout, and after a while, after such negligence, does discover an animal upon the track, and it is then so close upon the track that it is impossible to prevent killing or hurting it, that engineer is guilty of negligence; whereas, in the other case I have supposed to you, he would not be. Now the contention here is that the engineer was guilty of negligence in not keeping a lookout of this sort; that if he had kept a lookout for animals in dangerous proximity, he would have seen the animals in time to have prevented injury to them. The contention of the defendant, on the contrary, is that he did keep such a lookout as a reasonably prudent and competent man ought to have kept, and, keeping it, did not see the animals until they were so close that he could not help hurting them. If this is true, of course, he cannot recover; if the first contention is true, of course, the plaintiff must recover." The court, further charging the jury, said: "There is another proposition in that connection, involved in this case, which is insisted on by the plaintiff, and that is this: that if this engine was equipped with such light as only allowed the engineer to discover obstacles on the track or in dangerous proximity to it--we will say, for example, 100 yards away, meaning 100 yards away from the engine--then it was negligence to operate its train at such a rate of speed as rendered it impossible for him to stop within 100 yards."

George P. Harrison, for appellant.

Steiner, Crum & Weil, for appellee.

DOWD...