| Ala. | Nov 15, 1890
That the mule for injury to which appellee sues, was killed by the locomotive of defendant, was an admitted fact on the trial. The controverted questions were, whether the engineer kept a proper look-out, or by proper watchfulness could or ought to have seen the mule in time to prevent the injury. As to these questions of fact, the evidence varied. The engineer testified that he kept a steady look-out, and could not have discovered the mule earlier than he did, and when seen, no human efforts could have stopped the train in ■time to avoid a collision. In this statement, he is, in some respects, corroborated by the fireman. Plaintiffs witnesses testified to facts tending to show that the mule could have been discovered in time, had due care and diligence been observed, and the injury avoided had proper efforts been made. The ■court, at the request of plaintiff, instructed the jury, if defendant, through its engineer, was negligent in not seeing the mule •on the track, and not keeping a proper look-out near the track, they will find for the plaintiff; and also charged them separately as to the duty of the engineer on seeing an animal in close and dangerous proximity to the track.
By section 1144 of the Code, when the engineer perceives an obstruction on the track, he is required to use all the means in his power, known to skillful engineers, in order to .stop the train. This requirement of the statute is subject to the following qualification: when an animal, not being on the track, and not discoverable by due watchfulness, suddenly leaps thereon, in front of, and so near to the engine, that no human appliances vrould avail to stop the train in time to prevent collision, the engineer is not required to attempt its stoppage. Independent of this statutory duty, there exists a common-law duty when an animal is discovered in close proximity to the track, under circumstances indicating danger. In such case, it becomes the duty of the engineer to use the usual and proper means to frighten it away, and, failing in this, to check the speed of the train, so as to bring it under control, in order
The charge quoted above instructs the jury to return a verdict for plaintiff, on the isolated facts of negligence in not seeing the mule on the track, and in not keeping a proper lookout near the track. The liability of defendant does not necesr sarily result from merely showing injury and negligence on the part of the engineer in the particular respect mentioned. Such negligence must have caused, 'or contributed to the injury. Without implying as a part of the hypothesis, or assuming such connection between the negligence and the injury, the charge is incomplete; and this can not be implied, or assumed, unless the fact is undisputed, or clearly proved. Also, one-branch of the charge assumes as a fact, that the mule was on the track, and the other that it was near the track, and ought to have been discovered in time to prevent injury. The only evidence as to the time when the mule ran on the track, and how far in front of the engine, is that of the engineer and fireman, except the inferences that may be drawn from the tracks-of the mule, as testified to by the other witnesses; and the evidence was conflicting as to whether it came on the track from the south or the north side, and the difficulty of an earlier discovery on account of a fence and depression of the ground on the south side. From the evidence, it does not- follow as a conclusion of law, that had the engineer kept a proper look-out,, he could have discovered the mule in time to stop the train. All these are inferences to be drawn from the evidence, and should have been submitted to the jury, whose province it is-to draw conclusions of fact.
Reversed and remanded.