80 So. 141 | Ala. Ct. App. | 1918
This action is against a railroad company, and the complaint is in the following language:
"The plaintiff claims of the defendant the sum of seventy-five and no/100 dollars as damages for negligently killing one cow, the property of plaintiff, by its locomotive or train of cars at or near the 51 mile post on the Mobile Girard Railroad, one of its railroads, on, to wit, _____ day of May, 1917."
While the complaint is not as explicit as it might be, it was not tested by demurrer, and is sufficient to state a cause of action for the negligent killing of plaintiff's cow, by and through the operation of one of defendant's trains or locomotives. This is the charge which the defendant was called upon to defend, and evidence as to the injury should have been kept within the issues as made by the pleading. Under the issues as formed, evidence as to the condition of the growth of weeds and grass along defendant's right of way, so as to hide cattle from the view of the engineer, was not relevant, and should have been excluded. Choate v. Southern Ry. Co.,
The undisputed evidence in the case was to the effect that the cow that was killed came suddenly upon the defendant's track *568
from the bottom of a fill, and so close in front of defendant's locomotive as to render the killing unavoidable; that the engineer was in his place, keeping a lookout ahead; that he discovered the cow as soon as it could be discovered; that the engine and train were fully equipped with standard appliances; that these appliances were in perfect condition, and that he did everything known to a skillful engineer to prevent the accident. These being the facts, under the issues as formed, the defendant was entitled to a judgment. Anderson
Shackleford v. Birmingham Min. R. R. Co.,
Reversed and remanded.
