Western Railway v. McPherson

WALKER, P. J. There is nothing in the averments of the amended first count of the complaint, which were descriptive of the transaction complained of, to. indicate or suggest that they did anything more than vary the description of the transaction originally counted on. That amended count was not subject to any objection which might have been available to the defendant on that account if it had constituted a departure from the original complaint.—Kansas City, Memphis & Birmingham R. Co. v. Cobb, 102 Ala. 356, 14 South. [383] 763; Louisville & Nashville R. Co. v. Woods, 105 Ala. 561, 17 South. 41. That count of the complaint, in alleging that the employee of the defendant who had charge of its engine, while rnning said engine and acting within the scope of his authority, did “so recklessly, carelessly, and negligently operate its said engine as to strike and knock ’ from defendant’s track” the plaintiff’s cow, and “injured said cow to the extent of $50,” sufficiently showed that the alleged negligence of the engineer in the operation of the engine caused or contributed to the injury complained of. —Western Ry. Co. v. Lazarus, 88 Ala. 453, 6 South. 877; Western Ry. of Ala. v. McPherson, 146 Ala. 427, 40 South. 934; Curry v. Southern Ry. Co., 148 Ala. 57, 42 South. 447. The court was not in error in overruling the demnrrer to the complaint as amended. In the charge referred to in the third assignment of error, the defendant undertook to enumerate the places at which the infliction of damage to person or property by a railroad company casts upon it the burden of disproving negligence, and asserted as a proposition of law that, to cast on the defendant the burden of disproving the negligence charged in the complaint, the plaintiff mnst have shoAvn, not only that the defendant inflicted the injury, but that it occurred at one of the places mentioned in the charge. If the injury complained of occurred where “the tracks of two railroads cross each other at grade,” the statute expressly casts upon a defendant railroad company, which is sought to be charged with liability for injury to person or property shown to have been inflicted at such a place, the burden of proving a compliance Avith its requirements applicable to that situation. — Code 107, §§ 5474, 5476. Such a place was not included in the enumeration made [384] in the charge in question. In this respect it omitted a material feature of the charge on the same subject, which was approved on a former appeal in this case.—Western Ry. Co. v. McPherson, 146 Ala. 427, 40 South. 934. The words “the crossing of a railroad,” in the connection in which they are found in the charge now under review, immédiately following, as they do, the words, “at or near a public road crossing,” suggest that the only purpose of their use was to qualify the last-quoted expression, so as to make the expression as a whole describe only a crossing of a railroad by a public road, with the result that the charge as a whole is to be understood as omitting any mention of a crossing of two railroads. Certainly the language of that charge was not such as to inform the jury that the occurrence of an injury at a place where “the tracks of two railroads cross each other at grade” casts on the railroad company inflicting the injury the burden of proving anything in order to relieve itself of liability because of such injury. Under the charge as requested, though the plaintiff proved that the injury complained of was inflicted by the defendant’s engine at a place where its track crossed that of another railroad. at grade, that proof would not cast on the defendant the burden of disproving the negligence involved in a disregard of the precaution which the statute requires to be observed at such a place. A charge involving such a proposition cannot be reconciled with the statutory rule as to the burden of proof applicable in such a case. — Code, § 5476. Whether it was abstract or not, the refusal of that charge was justifiable because it asserted, or necessarily involved, a proposition which is not the law. The charge referred to in the fourth assignment of error hypothesized the failure of the engineer to see the cow while it was on the right of way. The bill of excep [385] ■tions, which, as to most of the evidence, merely stated its tendencies, does not show that there was any evidence tending to show that such was the fact. This charge was properly refused because it involved the hypothesis of the existence of a state of fact which, so far ns is indicated or suggested by the bill of exceptions, there was no evidence tending to prove. Affirmed.