Louisville & Nashville Railroad v. Lee

136 Ala. 182 | Ala. | 1902

TYSON, J.

Unless we indulge, in this case, the presumption of wrongdoing on the part of those in charge of the locomotive and impose the burden upon the defendant of acquitting itself of the act complained of, the plaintiff should not have been allowed to recover. That no such presumption can be indulged and that the burden of proof was upon the plaintiff to show that the emission of the steam was unnecessary to a skillful operation of the engine, is distinctly held in Stanton v. L. & N. R. R. Co., 91 Ala. 382. It is there said: “As.the railroad corporation has the right to use its track and make the required signals at a public crossing, and all the usual noises incident to the running and moving of its trains, it was incumbent on tlie plaintiff to show the ‘blowing off steam’ and the making of the noise complained of was unnecessary.” Applying this principle to the facts of tliis case, there being no evidence tending in the remotest degree to show that the letting off the steam that frightened plaintiff’s horse was unnecessary, the plaintiff has not discharged the burden of proof that was upon him. We cannot judicially know that the volume of steam emitted was unnecessary or that it was necessary to emit steam at all. For aught we may know, its emission was entirely and absolutely necessary to successfully give to the wheels of the engine a rotary motion backwards, such being the operation of the engine at the moment the steam complained of was emitted. ,

The judgment must be reversed and one will be- here rendered for the defendant.

Reversed and rendered.