141 Ala. 351 | Ala. | 1904
There was no merit in the demurrer to the complaint, as has in principle been often decided. — Choate v. Southern Ry. Co., 119 Ala. 611.
The demurrer to the plaintiff’s, 2d plea, was properly sustained. — A. G. S. R. Co. v. McAlpine, 71 Ala. 545; A. G. S. R. Co. v. C. Powers, 73 Ala. 244;; L. & N. R. Co. v. Kelsey, 89 Ala. 287.
The evidence shows without conflict, that the track was straight, from a, quarter to a half mile in the direction from which the train was coming, to where the mules came on the track; that'mule tracks were seen on the right of way of the railroad, also where the animals came on the road’s track, and that the mules ran down the track for at least twenty-five or thirty yards. The engineer testified, that he first saw the mides coming toward the track about fifteen or twenty feet therefrom; that.it was about forty yards from where he first
It is well settled with us, by repeated decisions, that when “a. railroad company injures 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 trade could be seen by the aid of the head-light, is guilty of negligence, which, if it caused the injury, entitled the owner to recovery.’’ — L. & N. R. Co. v. Kelton, 112 Ala. 536; B. M. R. Co. v. Harris, 98 Ala. 326; A. M. R. Co. v. McGill, 121 Ala. 230; C. of G. R. Co. v. Stark, 126 Ala. 367.
It is as well settled, that if the engineer is competent and keeping a proper look-out and does not and cannot see the approaching animal on or in dangerous proximity and it comes suddenly thereon, so close to the train that the engineer cannot stop in time to prevent the accident, the company is not liable for the injury done to the animal. — C. of G. R. Co. v. Stark, supra, and authorities there cited.
Reversed and remanded.