Mobile Light & Railway Co. v. McKay

SIMPSON, J. — This is an action by the appellee for the killing of a mule by the electric car of the defendant on a street in the city of Mobile. There is no assignment of error to the action of the court in overruling the demurrer to the complaint, and the only assignment of error insisted upon is to the refusal of the court to give the general affirmative chatge in favor of the defendant. ■ The evidence shows that the track was perfectly .straight for several blocks on both sides of the place [113] where the male was killed; that the mule was fopnd, shortly after the accident, in a mutilated condition on the defendant’s track, and the car, derailed about 10 feet east of the mule — thus raising a prima facie case of the killing of the mule by the car’ and of negl igence. The niotorman and the conductor not being obtainable, the only evidence introduced by the defendant was that of a passenger on the car, who testified that when the car was near Claiborne street he saw two mules on the sidewalk, which is about 15 feet from the track; “that as the car neared them they commenced to run and ran on the sidewalk and when the car got very close to them one of them started in front of the car, and the car struck it and ran over it; that immediately the motorman began setting up his brakes; that he appeared to work vigorously at his brakes, and, as far as he could see, was doing all he could to stop the car; that he did not know whether or not the motorman had shut tiff the electricity,” or had reversed the car, nor Iioav long the mules had been running on the sidewalk before he saw them; that it Avas about 9 o’clock, at night; that he saAV them by the electric lights; “that the motorman at'once applied the brakes and appeared to be doing all he could to stop the car, and one of the mules ran on the track just immediately ahead of the car, and the car collided with it before the motorman could stop.” It will be observed that the witness does not state just when the motorman applied the brakes. In fact, according to his first statement ,it was not until the car had struck the mule; and according to his second statement it would seem that the brakes Avere applied as soon as the passenger saw the mules on-the corner. At any rate, it is not shOAvn how long they had been running along the sidewalk when the motorman first saw them, nor Avhether he shut off the electricity at all or not. This court has said that when an animal is seen near [114] the track .it is not necessary to stop or check unless the circumstances indicate that the animal is likely to move on the track, but also that the “likelihood of its moving on the track would depend, of course, upon the circumstances, proximity or remoteness from the track, what it is doing, and the disposition it manifested at the time; and this likelihood, dependent upon circumstances, is for the jury to determine.” In this case we think it was a question for the jury. The general charge was properly refused, and the judgment of the court is affirmed. Affirmed. Anderson, McClellan, and Mayfield, JJ., concur