Western Railway v. Moore

53 So. 744 | Ala. | 1910

SIMPSON, J.

This is an action by the appellee for damages for the killing of a mule by the train of the defendant. The evidence shows that there are two public roads, within one-fourth of a mile of each other, and the station between them, and that the mule was killed between said public roads, and near and after passing the station.

Section 5473, Code 1907, requires the engineer or other person in control to “blow the whistle or ring the bell at least one-fourth of a mile before reaching any public road crossing or any regular station or stopping place on such railroad, and continue to blow the whistle or ring the bell, at short intervals, until it has passed such crossing, or reached such station or stopping place;” and. section 5476 places the burden of proof on the defendant to show compliance with the statute, and that there was no negligence. . The engineer states that he did not know that there was but one public road there, and that he rang the bell from the time he “got to the public road crossing until (he) got to the depot.” On his cross-examination he says that he did know there was another crossing, and was ringing the bell for that crossing; but he does not say that he continued to ring it until the crossing was passed. The plaintiff testified that “the bell did not ring.” The witness Walker testified that the mule was struck after the train passed the depot, and that no whistle was blown, or bell rung, after the train passed the depot.

A failure to comply with the statute is negligence.— Southern Railway Co. v. Crawford, 164 Ala. 178, 51 South. 340, 341; Weatherly v. Nashville, Chattanooga & St. Louis Ry., 166 Ala. 575, 51 South. 959, 962. It was for the court, sitting as a jury, to determine whether or not there was negligence, and whether or not there was any causal connection between the negligence and the injury. While we could not say, as a matter of law, that there was any causal connection between the negligence and the injury (Central of Georgia Railway Co. v. Simons, 161 Ala. 337, 50 South. 50, 51), neither could we say, as a matter of law, that there was no such causal connection, or that the court, sitting as a jury, erred in its finding.

The judgment of the court is affirmed.

Affirmed.

Dowdell, C. J., and McClellan and Mayfield, JJ., cone in-.