Western Railway Co. v. Lazarus

88 Ala. 453 | Ala. | 1889

SOMERYILLE, J.

1. The averment in the complaint that the engine was “so negligently operated by defendant’s agents that plaintiff’s cow was killed,” coupled with the further allegation that “said cow was killed on account of said negligence,” is, in odr judgment, sufficiently explicit to show that the damage done the animal resulted from the alleged negligence of such agents, and therefore of the defendant itself. Any averment is sufficient which shows that the negligence of the defendant either caused, or reasonably contributed to the injury complained of, or that the injury resulted from such negligence.— Western Railway of Ala. v. Sistrunk, 85 Ala. 352; Code, 1886, §1147. The demurrer to the complaint was' properly overruled.

2. It could work no prejudice to the defendant that one of the plaintiff’s witnesses described the stock killed as a “Jersey cow,” although it was shown by the evidence to be a “graded” and not a “thorough-bred” Jersey. The term used was generic, and indicated a mere popular nomenclature. No question of variance was involved, the animal being described in the complaint only as a cow, and not as a Jersey cow. Even a false or erroneous description in such cases can work no injury.

3. The opinion of the witness Clayton, as to the value of the animal, was certainly competent evidence. The fact that his estimate of value was .based on what the witness designated as “a Jersey craze,” which existed in the country about the time the animal was killed, might affect the weight of Ms opinion, but not its admissibility. There are times when the market value of almost every commodity of commerce is affected by a distracted or' speculative condition of the public mind, although the rise or fall of price may be produced by no solid economic reasons.

4. We have carefully considered, and are unable to perceive what relevancy to any issue in the case the fact proved by the witness Boss had. He was permitted to prove, at the instance of the plaintiff, the market value of thorough-bred Jerseys. The cow injured was not of this class, being only a graded Jersey. The value of the one was not admissible to prove the value of the other. The elements of fact which govern price and value are so complex, and especially is the prevailing supply'and demand of different articles so variable, that the value of the one may have but little influence on that of the other. The market price of mules, for example, would not be competent evidence of the price of a horse; nor that of cotton to prove the value of manufactured cotton fabrics ; nor of steel or iron to show the value of a hoe-or a plow.. The objection to the testimony of Boss should have been sustained, and for the error of admitting it the judgment must be reversed.

5. The court charged the jury, that “the law required the engineer to keep a steady look-out ahead for obstructions on the track;” and to this charge exception was taken. We have said, in discussing this subject, that “a watchful lookout must be steadily maintained, for the discovery of obstructions on the track,” and that “a failure to maintain a steady look-out is itself culpable negligence.” — M. & G. R. R. Co. v. Caldwell, 83 Ala. 196. These expressions are substantially synonymous in meaning with that used by the court; and if their tendency was to mislead the jury, this should have been corrected by requesting a counter charge, making prominent the fact that other duties, besides that of keeping a look-out for obstructions, devolve on the engineer, which may often prevent the constancy of his uninterrupted observation, and that a proper attention to these duties would not impute negligence. A “steady look-out” must not be construed to be an absolute, but a relative duty. The tendency of the first charge may have been misleading, but the charge itself was not erroneous.

6. To say that the presence of animals in dangerous proximity to a railroad track would call for the same exercise of diligence as if they were actually on the track, would be an incorrect statement of the law. The statute provides, that the engineer must, “on perceiving any obstruction on the track, use all the means within his power, known to skillful engineers, such as applying the brakes, and reversing engine, in order to stop the train.” — Code, 1886, § 1144.

The railroad company is made liable for any injury to persons, or stock, or other property, resulting from a failure to comply with this requirement, or from any other negligence on the part of the company, or its agents.- — Code, § 1147. We may suppose a case, where animals are in dangerous proximity to the track when discovered, but the reasonable indications are that they are about to move out of the range of danger. In such event, there would be no duty to stop the train. Such requirement would be both unnecessary and unreasonable. The duty to check the train would exist, only where the engineer either discovered, or, by the use of due diligence, ought to have discovered the animal, in dangerous proximity to the track, and under circumstances indicating either that it would be likely to move on the track, or else probably be injured if it remained stationary. — Western Railway of Ala. v. Sistrunk, 84 Ala. 352. The second and third charges should not have been given.

7. It is insisted that the justice of the peace, before whom the action originated, had no jurisdiction of the case, on the ground that the value of the animal killed was over fifty dollars. — Brown v. Ala. Gr. So. R. R. Co., 87 Ala. 370; 6 So. Rep. 295. It is sufficient to say, that this question can not be raised for the first time in this court. It should have been raised before the justice’s court, by motion to dismiss for the want of jurisdiction, or by plea in abatement. — Burns v. Henry, 67 Ala. 209; Glaze v. Blake, 56 Ala. 379. The statute makes such appeals triable de novo in the Circuit Court, and that court had jurisdiction of the subject-matter, whatever the amount in controversy. A failure to object to the procedure in the justice’s court, on the ground of jurisdiction, followed by an appeal to the Circuit Court, has been considered under our decisions as a waiver of the question in the latter court.

8. We can not say that the court erred in refusing to give the general affirmative charge requested by the defendant, as there was some evidence tending to show negligence on the part of the engineer. That it was slight, or weak, is a fact addressed to the consideration of the jury, not of the court.

Beversed and remanded.