| Ala. | Nov 15, 1900
The killing oí the mules for which thus suit was brought, occurred at .or near Limrock, a regular station Of stopping place on said railroad, and
■ It has been repeatedly held by us, that “the running of a train under such conditions, or at a rate of speed, as renders it impossible for the servants or agents having the management of it, to avoid injury to animals straying on the track, is negligence, rendering the company liable for the consequent injury.” This principle is subject to the condition, that “if the engineer is competent, and keeps a proper lookout, and does not, see and cannot see the approaching animals on or in dangerous proximity to the track, and it comes suddenly thereon, — so close to the train that the engineer cannot stop in lime to. prevent the accident,- — the company is not liable for the injury done to the animal.”—Railroad Co. v. Brinkerhoff, 119 Ala. 606" court="Ala." date_filed="1898-07-01" href="https://app.midpage.ai/document/louisville--nashville-railroad-v-brinkerhoff--co-6517763?utm_source=webapp" opinion_id="6517763">119 Ala. 606; Choate v. Railroad Co., 119 Ala. 611" court="Ala." date_filed="1898-07-01" href="https://app.midpage.ai/document/choate-v-southern-railway-co-6517764?utm_source=webapp" opinion_id="6517764">119 Ala. 611; C. of Ga. R. R. Co. v. Stark, 125 Ala. 365.
The court in this case charged the jury, presumably on all the law of the case, without objection on part of -defendant. Thereupon the defendant requested thirty written charges, and the court gave eleven of them and refused nineteen.
The evidence of the engineer was in conflict with itself. He first testified: “When I first observed the mules, they were on the right -side -of the track feeding, about five feet from the track.” Later he testified: “They were standing, the best, of my judgment is, about fifty feet from the track when I first saw them. They came out of the ditch, and ran directly towards the (uack. Both of them jumped right into the middle of the track, one following the other.” Later still, he testified: “My recollection is, that the mules threw up their heads, and made for the railroad, and forthwith jumped upon the track, and ran along in front of the engine, and down the middle of the track and not along its side.” Other evidence tended to show, that the mules
Refused charges 2 and 10, if not faulty for other reasons, were properly refused because they hypothesized facts not shown in evidence. . '
The -3d and 5th, .were properly refused. The 3d ignores the keeping of proper lookout by the engineer; and the 5th assumes, and requested the'court to charge as a matter of law, that he was keeping such a lookout, whereas the plaintiff’s evidence tends to show he was not. ' ■' ' • ’ ' '
When an animal is perceived near to the track of a. railroad, the diligence required of an engineer of a' moving train is not the same as if it were on-the track, and he is not required to stop or check the train, unless the circumstances indicate that the animal is likely to move on the track, or probably be injured if it,remains' stationary.—Western R. Co. v. Lazarus, 88 Ala. 453" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/western-railway-co-v-lazarus-6513729?utm_source=webapp" opinion_id="6513729">88 Ala. 453. The likelihood of its moving on the track, would depend, of course, upon the circumstances, — its proximity or remoteness rrom the track, what it is doing, and the disposition it manifests at the time, — and this likelihood, dependent upon circumstances, is for the jury to determine. It is only when the engineer, who is co.m petent and vigilant by keeping a steady lookout to discover stock, does not and cannot see the approach of an animal in dangerous proximity to the track, — that is, so close to the train that the engineer cannot stop'in time to prevent injuring or killing it, when it comes suddenly on the track, — that the company is not liable for injuring it. Without this, .as has been repeatedly held, if the train is run under such conditions, or at such a rate of speed, as renders it impossible for those
The 8th and 9th charges are faulty. 'They ignore a «dead}' lookout by the engineer to discover the animals, and it is not sufficient that he should have bum reasonable prudent to avoid injuring them at then time they were injured. He may, notwithstanding, * have been careless before that time in not discovering them sooner, and in running his train at' such a rate of 'speed as not to be able to avoid injuring them, after he did discover t*hem. ' ' '
The 13th was properly refused. The defendant, under the evidence, may have been liable for injuring the.animals, even if the engineer did blow the whistle and ring the 'bell of the engine; and besides, as for- what that fact was worth, the court had just charged the jury, at the instance of defendant, that if they believed the evidence, they “must find that the servants in charge of the engine blew the whistle and rang the bell, as the law required.”
The 18th gives undue prominence to the evidence of the engineer.
The 19th was misleading and improper to be given, under the evidence in the cause. Independent of the statutory provisions as to the burden of proof being on the defendant, as to the ringing of the bell and blowing the whistle, the other evidence' fully justified the finding of defendant's liability for the injury done the animals.
The other charges were, under the evidence, so manifestly properly refused, as to require no particular comment.
Affirmed.