103 Ala. 635 | Ala. | 1893
The plaintiff having made aprima facie case against the defendant, the burden was cast on it, to show that the accident could not have been prevented by the exercise of due diligence, .and the application of all reasonable preventive efforts to avert it.
The engineer, the only eyewitness to the killing of the cow, testified to facts tending to show, that the cow was in a position of danger when he first discovered her, only a short distance ahead of him, — about 25 yards, — at the edge of an embankment, and maintaining a sharp lookout ahead, he had not discovered her sooner. His testimony further shows, that immediately on discovering
The evidence of the witness, Wright, introduced by the defendant (authorized the jury to draw inferences not in harmony with the statements of the engineer, and to believe that he might have discovered the cow sooner than ho did, and in time, to prevent the accident, by employing' proper available means to do so. In this state of the proof, the general charge for the defendant was properly refused. — Rabitte v. Orr, 83 Ala. 186, Boyd v. The State, 88 Ala. 169 ; 1 Brick. Dig. 335, §§ 1, 4.
Affirmed.