Bugg v. Mitchell

*558 RICE, J. Appellee brought this action on account of the death of a horse belonging to him, which he , alleged was .negligently killed by defendant’s (appellant’s) agents or servants while acting within the line and scope of their employment. The facts, briefly stated, are as follows: About April 19, 1921, the defendant was operating a railroad which spanned Big Shades creek,between Parkwood and Bessemer, Ala,, by means of a trestle, which was from 30 to 40 feet high and between 80 and 100 feet long. The horse of plaintiff strayed from plaintiff’s premises onto the trestle, stepped into one or more of the spaces between the cross-ties of the trestle, and became fastened there in such a manner that it evidently could not extricate itself. One of defendant’s trains was coming from the direction of Parkwood when some of the crew thereon discovered the horse, and the train was stopped. The engineer, the conductor, and three brakemen went down to the trestle where the horse was and attempted to remove it from the trestle. The horse went over to the ground below and was killed. Evidence for the plaintiff tended to show that the defendant’s agents or servants, in attempting to extricate the horse, and remove it from the trestle, rolled it off the trestle; that planks or poles were used by the trainmen and the horse prized out of its position and rolled directly off over the side of the trestle. Evidence for the defendant tended to show that due care was observed by the trainmen in their attempt to remove the horse, but that the horse, as soon as it was, and immediately upon being, released from its position, jumped from the trestle and was killed by its own independent act. The plaintiff’s complaint contained 10 counts, all of which were eliminated during the trial of the base except counts 1 and 3. Defendant’s demurrers were overruled as to each of said counts, and those rulings of the trial court are the first urged upon us as error by the appellant. The demurrers in each instance raised the propositions that said counts did not state that the injury or death of the horse was the proximate consequence of the negligence of defendant, or its agents or servants, and further that the averments of negligence were conclusions of the pleader merely, in that the facts that constituted such alleged negligence were not set forth. In count 1 of the complaint, the averment is made that the horse was killed as a proximate consequence of the defendant’s negligence. In count 3 it is alleged that “defendant’s agents, servants, or employees, while acting within the line and scope of their employment, negligently caused plaintiff’s said horse to fall therefrom, and as a proximate consequence of said fall, was killed, etc.” We think this allegation is sufficient to show that the injury was the proximate consequence of the negligence complained of. The law does not require pleadings to bé in the form of grammatical niceties, and when the complaint, upon a reasonable construction, alleges that the negligence of defendant proximately caused or contributed to cause the injury complained of, or that the injury directly resulted from such negligence, it is sufficient. Curry v. So. Ry. Co., 148 Ala. 57, 42 So. 447; West. Ry. Co. v. Lazarus, 88 Ala. 453, 6 So. 877. Neither was it necessary for plaintiff to have set forth the facts constituting the alleged negligence. In an action for negligence, the duty to exercise due care being shown, it is not necessary that plaintiff set out in detail the specific acts constituting the negligence, as this would be pleading the evidence, it being sufficient, under such conditions, to aver negligence in general terms. So. Ry. Co. v. Hoge, 141 Ala. 351, 37 So. 439; Choate v. So. Ry. Co., 119 Ala. 611, 24 So. 373; Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 So. 349. Special pleas 3, 4, and 6 fail to state any defense to plaintiff’s complaint, if, indeed, any such matter therein attempted to be stated could not have been proved under the plea of the general issue which was interposed. Each of said special pleas mentioned failed to negative the alleged negligence set up in the complaint; each failed to show that the horse was not killed as a proximate consequence of such negligence; and each failed to show that reasonable care and diligence was exercised by the defendant’s agents or servants in their attempt to extricate the horse. There was no error in sustaining the demurrers to .each of the pleas mentioned. Special plea 5 attempted to charge the plaintiff with contributory negligence in allowing his horse to go on the trestle and failing to remove him or attempt to remove him. The doctrine of the ancient common law, that the owner of domestic animals is guilty of contributory negligence by allowing them to stray upon the property of another, is not the law in this state. The demurrers to plea 5 were properly sustained. L. & N. Ry. Co. v. Williams, 105 Ala. 379, 16 So. 795; Alabama, etc., Ry. Co. v. Jones, 71 Ala. 487. The evidence as above narrated was, under our decisions, sufficient, no doubt, to be submitted to the jury on the question *559 of the negligence upon the part of defendant’s servants or agents, alleged to have caused the death of the horse. A railroad company’s servants or agents, in the attempt to extricate animals from their bridges or trestles, owe their owners the duty to use ordinary care and diligence not to injure them, and, if they fail to exercise such ordinary care and diligence, the railway company is liable in damages for any injury suffered by them. The affirmative charge in favor of defendant as to counts 1 and 3 was therefore properly refused. 33 Cyc. p. 1213; Memphis & C. R. R. Co. v. Lyon, 62 Ala. 71; St. Louis & S. F. R. R. Co. v. Douglass, 152 Ala. 202, 44 So. 677. The place where the horse was buried, the condition of the embankment near the trestle, and the general condition of the locus in quo were admissible in evidence as a part of the res gestse. Facts or circumstances attendant upon the main fact in issue may be shown as part of the res gestse, although they involve no idea of action. Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606, 53 So. 812; Alabama City, etc., Ry. Co. v. Sampley, 169 Ala. 372, 53 So. 142. Sam Brown, a witness for the plaintiff, was asked on direct examination whether he had seen cattle graze around that point (the point where plaintiff’s horse was killed). He replied that you could find cattle and horses grazing around there most any time. The questions calling for this testimony were properly objected to and exceptions duly reserved. It was entirely irrelevant and immaterial to any issue in the case, and its admission was prejudicial error. Charges 2, 7, and 12 requested by defendant were each clearly argumentative, and were each properly refused. Charges 3, 4, 6, and 8 refused to defendant were each based upon a misconception of the law governing this case. The defendant would be liable, if the negligence of his servants or agents proximately caused plaintiff’s injuries, whether the said injuries were produced willfully or only as the result of simple negligence. Authorities supra. Charge 5 was properly refused. The same does not hypothesize freedom from fault on the part of the defendant’s agents or servants, and, as framed, the jumping from the trestle of the horse, mentioned in said charge, might not constitute an efficient intervening cause of its death. Charges 13 and 14 were abstract. There was no evidence that plaintiff kept his horse on defendant’s trestle, and the question of the right of plaintiff’s horse to be on the trestle does, not affect the liability of' the defendant. Charge 15 is misleading, in that it precludes fault of defendant’s agents, servants, or employees, and was therefore properly refused. Charge 16 was properly refused, in that the belief of the jury was not predicated upon the evidence. Charge 17 is an incorrect statement of the law as applied to the facts in the case. Charge 18 refused was substantially covered by charges 9, 18, and 19, given at request of defendant. , During the argument to the jury, counsel for the plaintiff made the following statement: “You might not have the right to be on there like á man, but that horse had a right to be there.” The statement was objected to, and a motion to exclude it was made; both the objection and motion being overruled by the court. The statement was wholly unsupported by the evidence, and was not in .keeping with the law governing such cases. The trial court was in error in refusing to exclude this statement from the consideration of the jury. Moody v. A. G. S. R. R. Co., 99 Ala. 553, 13 So. 233; Jackson v. Robinson, 93 Ala. 157, 9 So. 391; Edwards v. Earnest, 206 Ala. 1, 89 So. 729, 22 A. L. R. 1387. The action of the trial court in overruling defendant’s motion for a new trial is not argued as error to an extent that causes us to feel that it is proper to here „ give consideration to it. And then, too, perhaps on another trial the evidence may be different. For the errors indicated, the judgment of the lower court is reversed and the cause remanded. Reversed and remanded.