Central Railroad & Banking Co. v. Lee

STONE, C. J. The only testimony introduced on the trial, so far as is shown by the bill of exceptions, that had any reference to the circumstances of the accident by which plaintiff’s cow was injured, was that disclosed in the deposition of the engineer who had charge of the engine at the time of the accident. This evidence showed that the engineer performed all the dirties required by law of him, after he discovered the cow .on the track. But there is no evidence that he could not have discovered the cow if he had been maintaining a careful and prudent look-out. After the jiro of of the accident, it was not only incumbent on the railroad company to prove that it did all in its power to avert the accident, but it must also show that it was maintaining [445] a Careful and prudent look-out, and that in tbe maintenance of such look-out the cow could not have been sooner discovered.^ f'As was said ii Louisville & Nashville R. R. Co. v. Posey, ante. p. 262, decided at the present term: “The duty to take precautions against inflicting injuries arises not only when the engineer of the moving train sees the animal on the track, or in dangerous proximity thereto, but also when by the exercise of due diligence he might have seen it. A failurejin either of these respects is negligence.” — Kansas City, Memphis & Birmingham R. R. Co. v. Watson, 91 Ala. 483; East Tenn., Va. & Ga. R. R. Co. v. Bayliss, 77 Ala. 435. By the failure of the railroad company to prove that it did observe this diligence in maintaining the look-out required, the defendant does not meet the burden of proof imposed upon it by the statute, and hence the general affirmative charge for the defendant 'should not have been given. — L. & N. R. R. Co. v. Posey, ante p. 262. Affirmed.