Alabama Great Southern Railroad v. McAlpine & Co.

STONE, J. The present suit is for negligently killing a horse and mule by appellant’s trains. The killings were at different times, and are controlled by different testimony. While the killing was, in each ease, shown by plaintiff’s evidence with sufficient certainty to authorize the jury to find the fact of the killings, the circumstances attending them were shown alone by the witnesses for the defendant, railroad company. There was no material discrepancy in the testimony. The rule governing the duty and liability of railroads is, that their employes must bestow on the service that degree of care and diligence which very careful and prudent persons give to thier own affairs of similar magnitude and delicacy. This is the extent.—Grey v. Mobile Trade Company, 55 Ala. 387; Tanner v. L. & N. R. R. Co., 60 Ala. 621; Ala. Gr. So. R. R. Co. v. McAlpine, 71 Ala. 545. When injury has been shown to have been inflicted, the burden is then shifted on to the railroad company, to repel imputation of negligence, by proof sufficient to establish a prima facie case of such diligence. Section 1699 of the Code of 1876 has declared certain rules to be observed by railroad employes. These it is their duty to observe; and, in case of injury done by a train, which could be reasonably traced to a non-observance of these rules, it would then become the duty of the railroad company to prove that these rules had been complied with. But this principle only extends to such injuries as are caused by the nonobservance of such rules. The railroad is not liable for every injury it may inflict. It is only liable for such damages as are [119] done to persons, stock, or other property, which result from a failure to comply with the requirements therein expressed, or from some other negligence on the part of such company or its agents. — Code, § 1700. No matter how negligent the agents may be, if no one is injured thereby; no matter what injury may be suffered, if not caused or contributed to by the negligence of some agent in the control of the train, no liability is thereby fixed, on the railroad company.—M. & C. R. R. Co. v. Bibb, 37 Ala. 699; L. & N. R. R. Co. v. Williams, 65 Ala. 74. We have said that persons having the control of railroad trains in motion, must bestow that degree of care and diligence which very careful and prudent persons employ in their own private affairs of similar nature. To illustrate, this principle, let it be supposed the engineer is the owner of the railroad, with all its interests and responsibilities, and the stock imperiled is his own. He is running on schedule time, must avoid collisions with other trains, must strive to make connections, and so maintain the accustomed speed of his train, that the reputation of his-road for the transportation of passengers and freight be preserved. lie is supposed also to entertain a due regard for the safety of his cattle. He will not be expected to stop his train upon every occasion of possible danger .to -his stock. If he did so, he would derange the schedule, and miss his connections. Neither will he be expected to run with unchecked speed throughout the whole line. He has at his command appliances for checking the speed of his train, for stopping it altogether, and frightening stock from the track. He is acquainted with the habits of cattle, and with the effect of the stock alarm upon them. If the cattle be on the track, he will sound the alarm, and at the same time check the speed of his train, so that if the alarm prove ineffectual, he can halt his train and thus save his stock. He would probably pursue this course, if the cattle were perceived a sufficient distance ahead, to give time for these several stages. If, however, with a sufficient headlight, with good brakes in good working order, and without any negligence or inattention on the part of the engineer, the cattle, not being seen, or seeable before, spring suddenly on the track, or become visible on the track, in so close proximity to the engine, that any attempt to stop the engine in time, or otherwise to prevent the collision, must fail, then there is no want of care, even if no attempt be made to stop the engine. The law does not require the impossible to be attempted. We mean, however, the impossible m fact. The appliances must be resorted to, so long as there is a hope; and the onus is on the railroad, if sued, to show the utter fruitlessness of any attempt that might be made. We are not attempting to [120] weaken or destroy the rule declared in S. & N. R. R. Co. v. Jones, 56 Ala. 507. That case hinged on the fact that the ox was seen in dangerous proximity to the road a sufficient distance ahead of the train to require the application of preventive measures. In Ala. Gr. So. R. R. Co. v. Jones, 71 Ala. 487, we, to some extent, explained and modified the rule we had declared in M. & C. R. R. Co. v. Lyon, 62 Ala. 71. We desire now, if necessary, to make that explanation more emphatic. Speaking of the former case, we then said: “It was not intended to assert more than that it is the duty of railroad companies to employ the best machinery and appliances which are in use, and the failure to employ them, in view of the hazardous agencies they control, the dangers necessarily incidental, is a want of the care and diligence a man of ordinary prudence would observe. The omission to provide them is a violation of the duty enjoined by law, and if there be no more in the particular case than the omission and consequent injury, the court may, as matter of law, declare there is actionable negligence. The proposition must, however, be accepted with limitations and qualifications. From unknown causes, the machinery and appliances may, in the course of travel, become defective, or natural causes may intervene which render it inefficient. The train can not be expected to stop on the track. The stoppage may involve more of peril than its continued running, as the machinery will permit; and if, under such circumstances, reasonable care and diligence are observed, negligence could not be imputed. If it were true that from fog, or from driving rains or snow, the light cast from a proper headlight was obscured, the running of the train with reasonable [i. e. proper] care, in view of that circumstance, could not be deemed negligent.” And, indorsing what is there said, we repeat, if the train had proper headlight and brakes in good order, if it was skillfully officered, was not running with undue speed, and if the.officers and agents directing the movement of the train were attentive and vigilant, and guilty of no negligence, then, if by reason of the weather, or other unavoidable hindrance, the animal was not seen on the track until it was too late to save it by the use of the appliances belonging to the train, the railroad company is not liable for the loss. There is a correlation to the high degree of care and diligence exacted of those employed in the control of the steam engine. We have seen they are required to give to the service that degree of diligence, which very careful and prudent persons bestow on their own affairs of like magnitude and delicacy. The corporation they serve should be held liable for their actual or imputed dereliction, to the same extent, and only to [121] the same extent, as individuals would be held liable for the same conduct, under the same circumstances, and producing the same result. If jurors properly observe their sworn duty, they, in rendering their verdicts, will be governed alone by the testimony allowed to be given to them, and by the charge of the presiding judge. This is the sum and interpretation of their oath, and they have no discretion, save to weigh the testimony impartially, that they may arrive at the facts, and render a conscientious verdict. Any thing less than this, in any jury trial, is a palpable wrong, a mockery of justice, and a disgrace to the administration of the law. Natural persons and corporations, the richest and the poorest, the highest and the humblest, are alike equal before the law, have the same, and only th'e same rights, and are under the same, and only the same liabilities. There is no room or place iu'the jury-box for prejudice or partiality. Under the rules declared above, charge twelve asked by defendant — the charge relating to the mule — should have been given. As we have said, there was no conflict in the testimony, and if believed it clearly disproved every semblance of negligence on the part of the railroad’s employes, that could in the least have contributed to the death of the mule. It was one of those unforeseen misfortunes, which no diligence or forethought could guard against, according to all the testimony bearing on the question. We also think charge number eleven should have been given. The other charges asked we need not consider. The ruling on demurrer and the charge as to interest are free from error.—Borden v. Bradshaw, 68 Ala. 362 ; Ala. Gr. So. R. R. Co. v. McAlpine, 71 Ala. 545. Reversed and remanded.