Southern Railway Co. v. Hoge

I-IARALSON, J.- There was no merit in the demurrer to the complaint, as has in principle been often decided. — Choate v. Southern Ry. Co., 119 Ala. 611. The demurrer to the plaintiff’s, 2d plea, was properly sustained. — A. G. S. R. Co. v. McAlpine, 71 Ala. 545; A. G. S. R. Co. v. C. Powers, 73 Ala. 244;; L. & N. R. Co. v. Kelsey, 89 Ala. 287. The evidence shows without conflict, that the track was straight, from a, quarter to a half mile in the direction from which the train was coming, to where the mules came on the track; that'mule tracks were seen on the right of way of the railroad, also where the animals came on the road’s track, and that the mules ran down the track for at least twenty-five or thirty yards. The engineer testified, that he first saw the mides coming toward the track about fifteen or twenty feet therefrom; that.it was about forty yards from where he first [355] saw them before they were knocked off; that the train was running twenty-five or thirty miles an hour, the usual and proper rate of speed; that the engine had the usual oil head-light; and with it he could not see a cow over thirty-five to fifty yards; that after striking the mules he ran twenty-five or thirty yards before stopping; that when first seen, the mules were coming rapidly, — running from the woods, which extended to within seven or eight feet of the right of way of the railroad, shown to be twenty-five feet at that point, from the center of the track, and that it was but a little time after he first saw them, until they were on the track; that the train was equipped with all the appliances for stopping, such as are used on well regulated roads, and these were in good working’ order; that be. was keeping a close look-out, and as soon as he discovered the mules, he put on the air brakes and blew the stock alarm, and that at the time, and at the rate of speed he was running, he could not have stopped the engine in less than seventy-five or one hundred yards. The evidence showed that it was dark and a little rainy. It is well settled with us, by repeated decisions, that when “a. railroad company injures stock by the running of its train in the night time at such rapid rate of speed that it is impossible, by the use of ordinary means and appliances, to stop the train and prevent the injury, within the distance in which the stock upon the trade could be seen by the aid of the head-light, is guilty of negligence, which, if it caused the injury, entitled the owner to recovery.’’ — L. & N. R. Co. v. Kelton, 112 Ala. 536; B. M. R. Co. v. Harris, 98 Ala. 326; A. M. R. Co. v. McGill, 121 Ala. 230; C. of G. R. Co. v. Stark, 126 Ala. 367. It is as well settled, that if the engineer is competent and keeping a proper look-out and does not and cannot see the approaching animal on or in dangerous proximity and it comes suddenly thereon, so close to the train that the engineer cannot stop in time to prevent the accident, the company is not liable for the injury done to the animal. — C. of G. R. Co. v. Stark, supra, and authorities there cited. [356] The mules were not on tlie track when first discovered by the engineer, but he saw them, as he stated, some fifteen or1 twenty feet therefrom running toward it, and after getting on it, they ran twenty-five or thirty yards. He also stated that on discovering the animals, he immediately used all the appliances of a well equipped railroad, to prevent injuring the animals, and that it was not possible for him to stop before striking them. There is no evidence in contradiction of the engineer’s. He was the only person who witnessed the accident. If lie is to be believed, it was one of those unavoidable accidents for which the defendant ivas not responsible, and the general charge requested by defendant should have been given. It is unnecessary to notice other charges to which exceptions were reserved. Reversed and remanded.