98 Ala. 395 | Ala. | 1893
Appellant’s train, on the morning of November 21st, 1890, at about 3:30 o’clock, encountered on the track, sixteen of appellee’s mules; ran over them and killed thirteen, and fatally injured the rest. The engineer gave, as an excuse for running over them, that it occurred at Dry Creek, where a heavy fog then prevailed which obscured his vision and rendered it impossible to see the mules until he was so near them that preventive effort was impossible. The prevalence of fog was controverted by the plaintiff. The engineer was the only witness who testified to it, and he further testified that there was none at any of the other creeks he crossed that morning in that section, except at Ucliee Creek; that he saw no fog at any place, that morning, excej>t Dry Creek, where the mules were killed, and Ucliee. The defendant, for the purpose of showing the existence of conditions at Dry Creek favorable to the formation of fog, examined a witness on the subject, but he testified, that the land has a clay soil west of the trestle; that the trees on the edge of the creek were about twelve feet high, and on either side of the' right of way, were a great many small pine trees about ten feet high; that, in November, the land had been cleared up and was in culti-
The only other assignment of error arises upon the refusal of the court to give the general affirmative charge in favor of the defendant. As we have seen, there were sixteen mules on the track. There is evidence tending to show they were scattered to some extent along the track for a considerable distance. The track was straight, approach--ing the place, for more than a mile. It was a cloudless, starlit night. The train was running iron! sixteen .to twenty miles per hour. The head-light east a light on the track about forty yards ahead of the engine, and not far enough to enable the engineer to perceive an object on the track in time to avoid striking it. The engineer testified, also, that, in his opinion, he could not have seen the mules in time to avoid the injury if there had been no fog. The engineer was on diligent lookout for obstructions, at the time, and did not see the mules until he was so near them that preventive effort was impossible. These facts are shown without dispute. Under the evidence, in reference to the excuse predicated upon the existence of fog, it was for the jury to determine, first, whether fog existed or not, and, second, if it did, whether it was the cause of the injury; hence, in considering the propriety of the court’s ruling refusing the general charge requested, that matter must be left out of view. The real inquiry then is, is the defendant exculpated by the fact that the mules could not be discovered in time to prevent the injury, on account of the ordinary darkness of the night ? It is most manifest that if there was no fog, and the occurrence had been in daylight, the mules could have been seen in time to stop the train.
In M. & C. R. R. Co. v. Lyon, 62 Ala. 71, the injury to the mule occurred at night, and, with a perfect headlight which was then being used, the engineer could not see the mule at a greater distance than thirty yards. At the speed the train was running it was impossible to stop within less than forty yards. Upon the contention that the company was, as matter of law, guilty of negligence on this state of facts, this court said: “Those who employ the tremendous yet easily controllable power of steam engines
In A. G. S. R. R. Co. v. Jones, 71 Ala. 487, the principle was again recognized, with the qualification that the company may 'be excused when, from unknown causes, the machinery and appliances have, in the course of travel, become defective, or when natural causes intervene which render it inefficient, whereby- injury was caused; and it was said that if from fog, or driving rains or snow the light cast from a proper headlight was obscured, the running of the train with reasonable care, in view of that circumstance, could not be deemed negligent.
We think che rule of these decisions is a just application of the maxim sic utere tno, ut alienum, non Iceclas. Under the right of eminent domain the railroad company is empowered to appropriate the lands of others to the construction and operation of its road. It may locate its line of road through the farms and pastures of their owners as well as the unin-closed commons of the country. Under our system all un-inclosed lands are common of pasture. The owners of stock have the right to suffer them to go not only within their own enclosures but upon the commons. There is no principle which would require the stock owner to fence against the railroad. That duty, if necessary to secure the railroad company the proper enjoyment of its property and franchises, with due regard to the rights of others, would devolve upon the company itself, and not the stock owner. We are of opinion that if a railroad company, knowingly, runs its trains under such conditions as render it impossible for those in charge of them to prevent injury to stock straying upon the track, and such injury results, it ought to be held responsible for the loss. Such is undoubtedly the case when the train is run, in the night time, at such fast rate of speed that, by reason of the darkness of the night, stock can not be seen by the aid of the headlight in time to prevent injury by the use of the ordinary means and appliances with which trains are usually supplied. We do not mean to detract from the qualification of the rule expressed in A. G. S. R. R. Co. v. Jones, supra. If the injury is not attributed to the rate of speed, in view of the ordinary darkness ©f night, but resulted from intervening unusual natural
It results from what we have said that the general charge was properly refused, and the judgment of the Circuit Court must be affirmed.
Affirmed.