South & North Alabama Railroad v. Pilgreen, 62 Ala. 305

South & North Alabama Railroad v. Pilgreen

62 Ala. 305 | Ala. | 1878

STONE, J.

Railroad companies are private corporations, and their road bed and track are private property. They are of too general use for the courts not to know generally their modus operandi. They are not highways for public travel, but are private ways, along which no person is authorized to travel, except by permission or toleration of the owner of the road. A person found upon the track) ex-, cept for the purpose of crossing, and at a public crossing, may be warned away, and, refusing to get off, may be removed by all the means the owner of a freehold may employ to eject an intruder upon his possessions.— Tanner v. Louisville & Nashville Railroad Company, 60 Ala. 621. We judicially know that trains on a railroad, as a rule, are run, directed, and controlled under the authority of the owner of the road. Possibly trains of other roads might pass over the track ; but this would be an exceptional case, dependent on agreement outside of the general rule. There is no proof in this record that the train which probably did the injury was being run under any other direction than that of the railroad corporation; and, if necessary to the decision of this case, we will presume the South & North Alabama Railroad Company was running and controlling the train which, it is alleged, caused the damage. The charge asked and refused ignores this presumption, and asserts the proposition that if tiiere is no proof or evidence that the defendant [the railroad corporation] had control of the train of cars which did the killing, then the jury must find for the defendant. The charge was rightly refused.

The appeal bond in this case was very full and formal. It recites the parties to the suit, the date and amount of the judgment, and by whom rendered. The proceedings and judgment in the circuit court are in the names of the same parties, and the judgment is for the same sum. The appeal bond does not show what was the cause of action relied on in the court below. Our statutes of jeofails, relating to appeals from justices’ judgments, are exceedingly liberal.— Code of 1876, sections 3121, 3126, 3156. Under our rulings, *308any error or informality before the justice of the peace, becomes immaterial when the cause is appealed to the Circuit Court, unless it involves an entire change of parties, or a change of the cause or form of action. — Davis Avenue Railroad Co. v. Mallon, 57 Ala. 168; Glaze v. Blake, 56 Ala. 379. When an appeal is taken from a justices’ judgment to the Circuit Court, the statute requires the justice to return to that court all the original papers in the cause, together with a statement, signed by him, of the case, and the judgment rendered by him. In the present case, the justice did not return the original papers, nor did he sign the statement he sent up, of the case, and the judgment rendered. In this he did not conform to the mandate of the statute, The exception of the appellant is to the ruling of the Circuit Court, in refusing to award a certiorari to the justice, to procure from him the return the statute requires. It was not stated to the court that the return would show any departure in the Circuit Court from the proceedings before the justice; nor was any other reason given, why the wait of certiorari was moved for. The appeal bond, with its recitals, gave the Circuit Court jurisdiction of the cause, showed there had been no change of parties, and showed every thing else that could be alleged against the regularity of the justice’s proceedings, except as to the cause of action relied on before the justice. This, as we have said, was no where shown or asserted to have been departed from in the Circuit Court; and considering the entire record, we think it is affirmatively shown that the issue of, and return to the certiorari moved for, could not have affected the result of the trial. We hold, therefore, if there was any error in proceeding to trial in the Circuit Court, in the absence of such return as section 3655 of the Code requires the justice to make, it was error without injury.

Affirmed.