Louisville & Nashville Railroad v. Kelton

112 Ala. 533 | Ala. | 1895

HEAD, J.

In Central Railroad & Banking Co. v. Ingram, 98 Ala. 395, following the former cases of M. & C. R. R. Co. v. Lyon, 62 Ala. 71, and A. G. S. R. R. Co. v. Jones, 71 Ala. 487, we ruled that a railroad company injuring stock by the running of its train in the night-time at such rapid rate of speed that it is impossible, by the use of ordinary means and appliances, to stop the train and prevent the injury, within the distance in which the stock upon the track could be seen by the aid of the head-light was guilty of negligence, which, if it caused the injury, entitled the owner to recover. That decision has been followed in several eases. — L. & N. R. R. Co. v. Gentry, 103 Ala. 638 ; L. & N. R. R. Co. v. Davis, Ib. 661; B. M. R. R. Co. v. Harris, 98 Ala. 326 ; L. & N. R. R. Co. v. Cochran, 105 Ala. 354. We are now asked to reconsider and change that ruling. We have again considered it, and perceive the force of the elaborate and able argument of appellant’s counsel, but we are satisfied that the rule declared is right and decline to disturb it.

We think, however, that the first oral instruction of the court to which exception was reserved, while hypothesizing facts which constitute negligence within the rule of Ingram’s Case, was faulty in ignoring all causal relation between such negligence and the injury. If that negligence did not cause the injury, plaintiff, of course, could not recover on account of it. The instruction should have submitted that question to the jury.

The second and third oral instructions were free from error.

For the error in giving the first oral instruction, the judgment is reversed and the cause remanded.

Reversed and remanded.