Louisville & Nashville Railroad v. Kelsey

McCLELLAN, J. Assuming it to be a fact, that the stallion, for the negligent killing of which this action was brought, escaped from a train of the defendant company through the negligence of the plaintiff, we are unable to see any such relation of cause and effect between that fact and the subsequent injury to the animal by another and different train of the defendant, as would avail the defendant under the plea of contributory negligence. The uncontroverted evidence is, that the horse escaped, unhurt, from the car in which he was being transported, went thence a half mile in an easterly direction into a public road, and thence along said road for three miles, back to the railroad at a point where the public road crosses the track. “At this point, the horse turned up the track of defendant’s said railroad, and went north about one mile, and the tracks of said horse showed that it was running this distance north on the railroad track;” and at this point, about one mile from the rail [290] road crossing, the horse was struck by the locomotive cars of the defendant, constituting a train which was going north, and killed. Under these facts, if the escape of the animal was due to the want of due care and diligence on the part of the owner, his negligence was not the proximate cause of the injury, and will not defeat his right to recover damages which he has sustained thereby. In principle, it must be wholly immaterial whence the escape was effected, whether from the inclosure of the plaintiff, or from the cars of the defendant, where it was the plaintiff’s duty to keep the animal securely; nor is it important whether the escape was negligent merely, or affirmatively permissive. However the horse came to be at large, the mere fact that he was allowed to go at large was not the direct, moving and proximate cause of his death; and the fact of negligence vel non in allowing him to be at large, is one with which the jury had no concern, since no determination of that issue could have defeated a recovery .on the one hand, or increased plaintiff’s damages on the other. It was a matter beyond the issue, in other words, and the court properly refused to submit it to the jury in any form.—S. & N. Ala. R. R. Co. v. Williams, 60 Ala. 74; A. G. S. R. R. Co. v. Jones, 71 Ala. 487; A. G. S. R. R. Co. v. McAlpine, 71 Ala. 545. 2. The animal having escaped from the cars, and being at large, the rights of the owner in him, and to be compensated for injuries done to him through the wrong and negligence of others, were precisely the same as if the contract of shipment from Decatur to Montgomery had never existed, and the horse had never been on the defendant’s train. The measure of damages was the full value of the property destroyed. That the plaintiff had agreed, in the contract of affreightment, to claim only two hundred dollars for any injuries that might result to the property from any failure of the railway company to discharge and perform the duties imposed upon it by that contract, can exert no influence whatever in determining the amount of the damages to which the plaintiff is entitled for an injury in no wise connected with, or growing out of the contract, and which the plaintiff seeks to recover in an action, not upon, or for a violation of the terms of the contract, but for an entirely independent wrong and injury. That the plaintiff, in that contract, and for the purposes thereof, agreed that two hundred dollars was as much as the animal was reasonably worth, afforded some evidence, to be taken in connection with the eircum [291] stances under which the contract was entered into, of the value of the horse; and for this purpose it was admitted by the trial court. The court below very properly, we think, declined to accord to this contract any other operation in the case than as furnishing some evidence of an admission on the part of the plaintiff, to the effect that the animal was of less value than that claimed in this action. For this purpose it was competent, but it did not estop the plaintiff to claim as damages whatever the jury, on all the evidence, should find to be the real value of the property. 3. It being shown that the animal, while on the railroad track, was killed by a train of the defendant, the burden was on the defendant to acquit itself of the charge of negligence made by the complaint; and the rulings of the court to this effect were free from error. — Code, §§ 1144, 1147; Ga. Pac. Railway Co. v. Hughes, 87 Ala. 610; S. & N. Ala. R. R. Co. v. Williams, supra. Affirmed.