Ala. Great Southern Railroad v. McAlpine & Co.

STONE, C. J. This was an action on the case brought by McAlpine & Co. against the railroad company, and alleges that by two separate acts of negligence, and at different times, the railroad corporation killed a mare and a mule, the property of plaintiffs. The record and recovery show' that the plaintiffs recovered damages for the loss of the mare, and failed to recover for the loss of the mule. Each party has taken an appeal, and each assigns errors. Both issues being presented in one suit, and there being but one judgment and verdict, that judgment can not be both affirmed and reversed. If reversed on either appeal, it will be reversed throughout, and tried anew; for two judgments can not be rendered in this one suit. We will first consider the railroad’s appeal, which questions the recovery for the loss of the mare. The jury was instructed to find for the defendant as to the mare, if they believed the evidence. That the mare was killed by the defendant’s train all the testimony tended to prove,.and [76] does not appear to have been controverted. The question was then raised whether such killing was without negligence on the part of the railroad company, and on this issue the burden was on the defendant to disprove negligence. The charge given was not an instruction to find for the defendant in any event. It would have been error if given in that form; for the credibility of oral testimony must always be left to the jury. The general charge given left that question, and rightly left it, to the jury. lienee it was not error to instruct the jury that if “under the facts and circumstances shown in evidence (they did not) believe the evidence offered by the defendant tending to acquit itself of negligence, then a verdict may be found as to the mare for the plaintiff.” Such is the legal and logical result in every case, where the party on whom the burden of proof rests, attempts to sustain it by testimony that is not believed. In this connection, however, we re-affirrn what we said as to the duty of juries in this case when formerly here — 75 Ala. 115 — and E. T. Va. & Ga. R. R. Co. v. Bayliss, Ib. 466; s. c., 77 Ala. 429. There was a failure on the part of plaintiffs to recover for the mule sued for, and from that judgment they have also appealed. The facts in reference to the killing of the mule are different, and the question of the liability of the railroad rests on somewhat different principles. • This killing was done in less than a quarter of a mile of the depot and road-crossing at Boligeeand hence within the area where the statute requires of approaching trains on railroads that the whistle be blown, or bell sounded, at intervals, until the train passes the road-crossing, or reaches the stopping place. We have several times held, that the measure of liability, when cattle or stock is the subject of the injury, is different from the rule when the injury is to the person. The statute — Code of 1876, § 1700— expresses the difference. We commented somewhat on this difference in M. & M. Railway Co. v. Blakely, 59 Ala. 471; and Clements v. E. T. Va. & Ga. R. R. Co., 77 Ala. 533. Our utterances on the subject we have in hand have not always been as guarded as perhaps they should have been. We refer specially to M. & O. R. R. Co. v. Williams, 53 Ala. 595; and Clements v. E. T. Va. & Ga. R. R. Co., 77 Ala. 533. In neither of these cases was the question presented of a failure to comply with the requirements of §§ 1699-1700 of the Code, where injury to stock was the subject of complaint. The first of the cases presented only the question of the burden of proof, for there was no proof of any circumstance attending the killing. The testimony showed the naked fact that the cattle were injured by the railroad’s train, and the court ruled that the burden was thereby shifted on the railroad company [77] to disprove negligence on its part. It offered no proof, and of course, the presumption of negligence remained unrebntted. Anything said beyond this, was not called for by any testimony in the cause. In Clements v. E. T. Va. & Ga. R. R. Co., supra, the injury complained of was to the person. No question could arise as to the requisites of proof, when injnry to cattle or stock is the complaint. The difference in the two rules was stated, following what had been said in Williams' Case/ but the wants of the case did not call for it. We do not hold ourselves committed to an extreme interpretation of either of those cases. The true rule — the one it is our intention to be governed by' — is that laid down in this ease when last before us, 75 Ala. 113. True, the statute, Code, § 1700, declares that “where any stock is killed or injured, or other property damaged or destroyed by the locomotive or cars of any railroad, the burden of proof in any suit brought therefor is on the railroad company, to show that the requirements of the preceding section were complied with at the time and place when and where the injnry was done.” This is an emphatic declaration of the rule as to the burden of proof in all snch cases, and the extent of it. It must be observed in its strictness and entirety, wherever there is a reasonable hope or reasonable possibility that damage or danger may be averted. It requires no attempt of the impossible. And the same section of the Code — 1700 —declares the consequences of its non-observance. The “ railroad company is liable for all damages done to persons, stock, or other property, resulting from a failure to comply with the requirements of the preceding section, or any negligence on the part of the company or its agents.” To sum up: Injnry raises the presumption of negligence, and casts on the railroad the burden of disproving it. It is not disproved until all negligence is negatived, and a compliance with all the requirements of the statute is proved, unless it is shown that the conditions were such that compliance was impossible, or would have been unavailing. — S. & N. Ala. R. R. Co. v. Thompson, 62 Ala. 494; Id. v. Williams, 65 Ala. 74; E. T. Va. & Ga. R. R. Co. v. Bayliss, 74 Ala. 150. As the record formerly appeared, we considered the testimony, if believed, established the proposition that the whistle was properly blown more than a quarter of a mile before reaching Boligee station and the'crossing, and that the bell was kept ringing, at intervals, until the depot was reached. We still understand the testimony of the engineer and fireman to affirm that the whistle was sounded a full quarter of a mile before reaching Boligee, that it was given by one long, followed by [78] three short blasts, and that shortly afterwards the belb was sounded, and the ringing kept np until the station was reached. If this bo so, no blame can attach to the railroad corporation on this account. It was not necessary the bell should have been struck instantly on the cessation of the whistle. “At intervals,” is the language of the statute. If within a reasonable time after the whistle ceased to sound, the ringing of the bell commenced, and was kept up at intervals, this met the requirement of the statute. The only new testimony found in this record is that of Dr. Byrd. It does not vary the case, under the rules of law declared above. If the testimony was believed, it showed a compliance with the statutory requirements, and disproved all negligence on the part of the railroad’s employees. It went further, and, if true, no human foresight or precaution could have foreseen or prevented the injury complained of. The Circuit Court did not err in giving the general charge, nor in refusing the charges asked. There is no error prejudicial to J. A. McAlpine & Co., and the judgment of the Circuit Court is in all things affirmed.