133 Ala. 362 | Ala. | 1901
Action by Hall against the railroad company. The complaint is as follows: “Plaintiff claims of the defendant the sum of seventy-five dollars as damages for that on or about the .... day of August, 1900, defendant negligently caused one horse, the property of plaintiff, to run into a trestle on defendant’s railroad, and ¡thereby injured it so'it was worthless.” (There was also a mule in the coni
On the evidence before them it was open to the jury ■to find that defendant’s train was being moved forward toward a trestle, that plaintiff’s horse was on the track between the engine and the trestle running, in apparent fright of the train, toward the trestle, that the track along which the horse ran was on an embankment five or six feet high, the sides of which while not “precipitous” were yet at such an incline as that a horse in attempting to go down them would partially slide, that the train was from thiry to fifty yards behind the horse and going faster than he was — “gaining on him,” — that the engineer was aware of the situation but did not seasonably stop or check the speed of his train, that had he done so the horse would not have continued his flight onto and into the-trestle, and the injury to the animal would have been averted. In view of the phase of the case presented by these tendencies of the evidence, the court properly refused the affirmative charge requested by the defendant. Seeing the horse running directly toward the trestle in fear of the advancing train, the surroundings being such as that he would probably continue his flight along the track into the trestle if the train continued to advance, the engineer owed the plaintiff the duty of stopping the train and thereby removing the cause of the flight of the animal, and if he negligently failed to discharge this duty and in consequence the horse was injured, the defendant is liable.
Nor, in our opinion, was the oral charge bad when referred to the evidence, for asserting that when the horse got on the main line and the engineer saw that he was headed for the trestle, it became the duty of the engineer to take -steps to stop his train. The evidence is undisputed that the horse was frightened by, and in flight from, the train and that he was -running on a considerable embankment, his easiest route of flight, but for the trestle being on and along the track. On these facts there was such obvious danger of the horse running into the trestle from the time he got on and began to run along the main track as to impress the mind of an ordinarily prudent man in the place of the engineer with the necessity of removing the cause of the horse’s fright and flight by stopping the pursuing engine, and it- then became the engineer’s duty to stop it.
We find no error in the record, and the judgment must be affirmed.