East Tenn., Va. & Ga. Railroad v. Carloss

SOMERYILLE, J. — -Where a suit is instituted for damages to live stock, or cattle of any kind, caused by locomotives or railroad cars in this State, a justice’s court has jurisdiction of such cause, when the value of the stock or cattle so killed, or the damage done, is one hundred dollars, or less. — Code, 1876, § 1711. When such value or damage exceeds one hundred dollars, the suit must be brought in the Circuit Court.- — -Code, § 1714. All such claims are expressly barred by statute, unless the complaint is made, by suit or presentation, within six months from the date of the killing or injury. — East Tenn. Va. & Ga. R. R. Co. v. Bayliss, 74 Ala. 150. The statute provides that the complaint, when filed with the justice of the peace, must be in writing, and set out the number and character of the stock or cattle so killed or injured, and must also specify “the time when, and the place where the killing or injury occurred,” with the name of the owner, and of the defendant owning or controlling the road, whether a corporation or a natural person. — Code, 1876, § 1711. It is our opinion that like averments should be made when suit is commenced by complaint before the Circuit Court. This is a fair inference of the legislative intention, as shown by the act approved February 3d, 1877, which is embraced in sections 1710 to 1716 of the Code. The purpose of the requirement is to inform the railroad officials, with reasonable certainty, as to the [447] circumstances attending the alleged injury, so that they may act advisedly in the investigation of the case, either with the view of voluntary adjustment, or of defense at law. The time, we think, should be stated to be a. specified day of a given month and year. TYiq place should be averred to be at a certain locality along the line of the road, describing its distance and direction from a named depot, or other known point. Any thing more general than this would not be sufficiently certain as a statement of “ the time when, and the place where the killing or injury occurred,” within the meaning of the statute, or for the fulfilment of its manifest purposes. A mention of the cotmt/y merely is lacking in certainty as to place. The second count of the complaint in this cause failed to state the particular day in the month of January, 1882, when the alleged injury was done, and was for this reason defective. The demurrer to it based on this ground should have been sustained. The first count alleged the injury to have occurred on the 21st day of January, 1882. The evidence showed that it occurred about the first day of the same month, or three weeks prior to the time stated. This was a variance, and the court erred in refusing to exclude this evidence. The defendant was liable for any damage wrongfully caused by its locomotives or railroad cars to the live stock or cattle of the plaintiff described in the complaint. — Code, § 1710; Zeigler v. S. & N. Ala. R. R. Co., 58 Ala. 594. The first count of the complaint sufficiently averred that the injury complained of was caused by the negligence of the defendant. The first two grounds of demurrer to this count were properly overruled, under the authority of S. & N. Ala. R. R. Co. v. Thompson, 62 Ala. 494. The question propounded to the witness Howell, and his answer to it, can not be regarded as calling for, or expressing'a mere opinion. He was asked, in effect, whether he was near enough to the line of the railroad to have heard any. other train than the one in question, if one had passed during the interval of an hour and a half when he was in the neighborhood of the place where the cattie were injured. This called fora fact, not an opinion.— Cox v. The State, 76 Ala. 66; Tesney v. The State, at the present term, ante, p. 33. The language of counsel used in the argument of the cause was clearly in violation of the rule established by our decisions, governing the latitude of forensic discussions. — East Tenn., Va. & Ga. R. R. Co. v. Bayliss, 75 Ala. 466 ; Motes v. Bates, 74 Ala. 374; Wolffe v. Minnis, 74 Ala. 386; Cross v. The State, 68 Ala. 476. As the case is sent back for a new trial on another point, we need not consider whether the exception was properly taken so as to raise this question. Circuit judges [448] liave ample power to check arguments of this character, by setting aside verdicts obtained through their influence, either on motion of the adverse party, or ex mero motu. If it were exercised more freely in such cases, this court would probably be troubled with reviewing fewer transgressions of the rule to which we have above referred. The judgment is reversed, and the cause remanded.