101 Ala. 676 | Ala. | 1893
We think, under the evidence in this case, it was for the jury to determine whether the cattle came upon the track so suddenly and near to the engine that the persons operating the train could not, by the exer
The charge given at the instance of the plaintiff is supported by so many adjudications of this court that we need not comment upon it or cite the cases. We do not find such an undisputed state of facts, as defendant’s counsel argue, as takes the charge without the influence of the general rule.
We can not affirm that if the engineer saw the cattle a quarter of a mile before reaching them, when they were standing near the track and indicating no intention of moving to the track, and would not probably have been injured where they were, he was under no further duty to look out for their safety. Charge six requested by defendant was, therefore, properly refused.
Charges 2 and 3 requested by defendant were properly refused. They both require the plaintiff to prove negligence on the part of the defendant, committed prior to the time the cattle got upon the track. If the injury resulted from negligence committed subsequently to the time the cattle got on the track, the defendant is liable, although there may have been no negligence prior to that time. On the subject of the burden of proof,, generally, in cases like the present, our decisions, since the act of Feb. 28, 1887, amending section 1700 of the Code of 1876, (which act may be found in a note on page 300 of the Code of 1886) gave rise to some confusion. In Birmingham Mineral R. R. Co. v. Harris, 98 Ala. 98, 13 So. Rep. 377, we had occasion to review the subject, and we there announced the true rule, arising upon the proper interpretation of the change made in the law by the act above referred to. That case gives all necessary light on the question of the burden of proof,
