Opinion
6 Div. 453.
March 23, 1939.
Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.
Stokely, Scrivner, Dominick Smith, of Birmingham, for appellant.
Where the engineer is keeping a proper lookout and does not and cannot see the approaching animal in dangerous proximity to the track, and it comes suddenly thereon so close to the train that the engineer cannot take action to prevent the accident, the railroad is not liable for any injury done the animal. Southern R. Co. v. Hoge, 141 Ala. 351, 37 So. 439; Central of Georgia R. Co. v. Stark, 126 Ala. 365, 367, 28 So. 411; L. N. R. Co. v. Brinkerhoff, 119 Ala. 606, 24 So. 892; East Tennessee, Va. Ga. R. Co. v. Bayliss, 75 Ala. 466; Alabama G. S. R. Co. v. Smith, 85 Ala. 208, 3 So. 795. There is no duty or requirement on the operatives of a train to take preventive effort when stock is seen in the vicinity of the railroad track far enough therefrom for the train to pass without striking the animal. Chattanooga So. R. Co. v. Daniel, 122 Ala. 362, 25 So. 197; Western Ry. v. Lazarus, 88 Ala. 453, 6 So. 877.
Henry H. Mize and John R. Bealle, both of Tuscaloosa, for appellee.
It was the duty of the engineer to blow the whistle or ring the bell at least one-fourth of a mile before reaching a public road crossing, and when entering a curve crossed by a public road where he cannot see at least one-fourth of a mile ahead he must have his train under such control as to prevent accident in the event of an obstruction, and a failure to perform this duty is negligence. Code 1923, §§ 9952, 9955; Miles v. Hines, 205 Ala. 83, 87 So. 837; Central of Georgia R. Co. v. Wood, 129 Ala. 483, 29 So. 775; Alabama G. S. R. Co. v. McAlpine Co., 80 Ala. 73; Scholze v. Sloss-S. S. I. Co., 138 Ala. 339, 35 So. 321; L. N. R. Co. v. Loyd, 186 Ala. 119, 62 So. 153; Western Ry. v. Sistrunk, 85 Ala. 352, 5 So. 79; Ensley R. Co. v. Chewning, 93 Ala. 24, 9 So. 458. The statute imposes upon the defendant the burden of proof to negative negligence. Evidence of no negligence on part of the operatives of one train is not sufficient where the injury could have been done by another of defendant's trains. Davis v. Morgan County, 209 Ala. 343, 96 So. 473; Central of Georgia R. Co. v. Vaughan, 207 Ala. 381, 92 So. 552; L. N. R. Co. v. Sellers, 222 Ala. 615, 134 So. 8; Central of Georgia R. Co. v. Majors, 21 Ala. App. 250, 107 So. 223; Southern R. Co. v. Penney, 164 Ala. 188, 51 So. 392; Persons running a train have the general duty of keeping a lookout for animals and of using diligent efforts to avoid injury to them when seen in peril on or near the track. The fireman has a duty of informing the engineer as to proximity of animals to track in dangerous position. Kansas City, M. B. R. Co. v. Wagand, 134 Ala. 388, 32 So. 744; Alabama G. S. R. Co. v. Boyd, 124 Ala. 525, 27 So. 408; Western R. Co. v. Sistrunk, supra; Mobile G. R. Co. v. Caldwell, 83 Ala. 196, 3 So. 445; Southern R. Co. v. Lawler, 11 Ala. App. 241, 65 So. 857; Alabama G. S. R. Co. v. Sanders, 203 Ala. 57, 82 So. 17. It is negligence for an engineer to refuse to check speed of train merely because he cannot come to complete stop before reaching place where the animal is moving across track. Code, § 9952; S. N. R. Co. v. Williams, 65 Ala. 74; 52 C.J. 70, 72; 3 Elliott, Railroads (2d Ed.) 459; Chattanooga S. R. Co. v. Wilson, 124 Ala. 444, 27 So. 486; Central of Georgia R. Co. v. Williams, 200 Ala. 73, 75 So. 401; Chattanooga S. R. Co. v. Daniel, 122 Ala. 362, 25 So. 197; Alabama G. S. R. Co. v. Moody, 90 Ala. 46, 8 So. 57.
This is a suit at law for the recovery of damages for killing plaintiff's mule at one time and his cow at another by defendant's train of cars on its railroad track.
The mule was killed at a public road crossing the track at Cottondale, Alabama, near the station, and where the crossing is about the center of a sharp curve extending about one thousand feet toward the left going toward Tuscaloosa from Birmingham, which we assume to be in a southwesterly direction. So that the crossing was about five hundred feet from where the curve began and obstructed the view of the engineer.
The train was a very heavy freight traveling at the rate of about thirty-five or forty miles an hour. The crossing signal was blown beginning at the post about a quarter of a mile from the crossing, which continued virtually to it, where the mule was struck. The engineer first saw the mule when a little more than one hundred feet away, and could not have seen him earlier because of the curve. He was then near and approaching the track from the right side of the train. The engineer did nothing to avert the injury further than the blowing of the crossing signal. He said it would have done no good. His train was well equipped in every way, but that he could not stop the train in time to avert the collision, and made no effort to do so. This was about two o'clock in the morning. There was also a horse approaching the track very close ahead of the mule. The horse got across, but the mule did not. Nothing was done to check the speed of the train, though the use of the brakes would have done so, especially the emergency brakes.
The Cow.
She was injured about the lower end of the same curve not at a crossing, in the day time, by another freight train going in the same direction. She was on the left side of the track in view of the fireman, but not of the engineer, on the top of a fill about twenty-five feet high, about three feet from the ends of the ties, and when seen by the fireman on the approach of the train she was looking toward the train, apparently had been eating grass but standing still. The fireman had been on his box looking ahead since they first entered the curve, as was his duty, and noticed the cow as they passed the depot, variously estimated to be two hundred and twenty-five to four hundred yards from where she was. The engineer had blown for the road crossing, but gave no other signal until they reached the place where the cow was, and did not check the speed, and was not notified by the fireman of the position of the cow. The cow does not seem to have been struck by the engine, but after the train passed she was seen to have been injured. No one saw the impact or what part of the train hit her.
The foregoing facts are without material conflict, and constituted substantially the evidence relating the circumstances of the accidents.
Appellant insists that the affirmative charge should have been given at its request as to each count separately, and that, in the alternative, a new trial should have been granted.
Section 9952, Code, among other things, provides that the engineer must blow the whistle or ring the bell "immediately before entering any curve crossed by a public road, where he cannot see at least one-fourth of a mile ahead, and must approach and pass such crossing at such speed as to prevent accident in the event of an obstruction at the crossing."
We have shown that the mule was killed at such a place. Whether the requirements of the provisions of the law quoted above were complied with was a jury question, with the burden on defendant. Nothing further need be said to show that the affirmative charge was not due defendant on the count based upon that situation. Miles v. Hines, 205 Ala. 83, 87 So. 837.
The cow was not injured at a public road crossing on a curve, and, therefore, the above quoted feature of section 9952, Code, has no application to that accident. Atlantic Coast Line R. Co. v. Jackson, 221 Ala. 646, 130 So. 388; Southern R. Co. v. Hale, 222 Ala. 489, 133 So. 8; Southern Ry. Co. v. Holder, 230 Ala. 500, 161 So. 513.
Whether the cow was dangerously near the track on the approach of the train as seen by the fireman, so as to indicate danger of injury to her, was for the jury to find, and there was evidence which was sufficient to support a finding that such condition existed. The fireman saw this condition if it existed something like two hundred to four hundred yards away. Whether the whistle should have been sounded or bell rung or speed slackened, and by so doing the danger lessened and the accident averted, were questions for the jury.
The duty existed to do some or all of them if the cow was in dangerous proximity to the track and likely to be injured by the approaching train, and this was discovered by the fireman in time to have used some such precaution having a reasonable tendency to avert the accident. The authorities are numerous to that effect. Chattanooga South. R. Co. v. Daniel, 122 Ala. 362, 25 So. 197; Chattanooga South. R. Co. v. Wilson, 124 Ala. 444, 27 So. 486; Central of Georgia R. Co. v. Williams, 200 Ala. 73, 75 So. 401.
The burden of proof to show that there was no negligence was on the defendant, if the jury found that the cow was killed by defendant's train of cars. Section 9955, Code; Louisville Nashville R. Co. v. Sellers, 222 Ala. 615, 134 So. 8; Ex parte Southern R. Co., 181 Ala. 486, 61 So. 881; Central of Georgia R. Co. v. Williams, 200 Ala. 73, 75 So. 401.
There was therefore no error in refusing to give the affirmative charge, requested by the defendant, on the count relating to the injury to the cow.
On motion for a new trial, all that need be said is that in our opinion the verdict was justified by the evidence.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.