Georgia Pacific Railroad v. Fullerton , 79 Ala. 298 ( 1885 )

SOMERYILLE, J.

The point most pressed on us in this case relates to the proper measure of damages where live stock or cattle belonging to the plaintiff has been negligently killed by the locomotive or cars of a defendant railroad company. There would be no room for argument about the matter, if section 1704, of'the Code of 1876, was unrepealed and still in force; for the measure of damages there declared is the value of the stock if killed, and the damage thereto if injured. But sections 1704 to 1709 of the Code appear to have been super-ceded and repealed by the act of February 3, 1877, now embodied in sections 17Í0 to 1715 of the same Code.—Zeigler v. S. & N. Railroad Co., 58 Ala. 594; S. & N. Ala. Railroad Co. v. Morris, 65 Ala. 193. The repeal of section 1704 leaves the question of damages to be governed by section 1700, which declares, that “a railroad company is liable for all damages done to persons, stock, or other property,” resulting from a failure to comply with the statute, or from any other negligence on the part of the road or its agents. The value of the stock killed is nowhere else declared to be the absolute criterion of the plaintiff’s damages, but may be looked to for the purpose of determining the jurisdiction of the court assuming to take cognizance of the subject-matter. — Code, 1876, §§ 1711, 1714. On the contrary, the thing intended to be proved upon the trial is elsewhere reiterated to be “the damage of injury to such stock or cattle.” — Code, § 1712.

If the stock or cattle be killed, it does not follow that, in every case, the necessary measure of the plaintiff’s recovery must be the value of such stock. Such-value is undoubtedly the prima facie measure of damages, and the burden of proof may be thrown on the defendant to overcome this presumption, when once it is made to arise upon proved facts. But, upon every sound principle, the damage suffered by the plaintiff is the difference in value between the cattle when alive, and the carcass of the animal when dead.—Illinois Cent. R. R. Co. v. Finnegan, 21 Ill. 646. The dead animal unquestionably belongs to the plaintiff, and not to the railroad company, by whose negligence it was killed. The tort committed does not operate to divest the title of the property, so as to transfer it to the wrong-doer. If the carcass, being of any pecuniary value, should be converted to the use of the railroad, an action of trover would lie for it in favor of the owner. The carcass, it may be, is most frequently worth nothing to the owner; and the facts must be peculiar which would overcome this presumption. It is often bruised and mangled, and unfit for any use. Its small value, and distance from any available point, may render its utilization profitless. There may be no ready market for it, even if possessing some value. In such and like cases, we apprehend, the owner may abandon the carcass, and claim the reasonable value of the animal before it was killed, as the proper measure of his compensation.—Thompson on Negligence, p. 539, § 31; Rockford R. R. Co. v. Lynch, 67 Ill. 149; 3 Wood’s Railway Law, p. 1549, § 423.

But, where the owner assumes dominion over the property, after it is killed, and converts it to his own use, or gives it away to another, its net value, if anything appreciable, must be deducted in estimating the plaintiff’s damages.—Case v. St. Louis R. R. Co., 75 Mo. 668; s. c., 13 Amer. & Eng. R. R. Cases, 546. So, where it is made to appear by the defendant that the carcass of the dead animal is valuable for beef, or other purposes, and could have been disposed of by the plaintiff by the exercise of reasonable diligence- — by which we mean such diligence as would or should have been exercised by a person of ordinary prudence, who was situated in like circumstances with the plaintiff—then the plaintiff can not wantonly abandon the carcass, and, by refusing to perform his clear duty in the premises, aggravate the amount of his recovery. It is the duty of one injured by the act of another, to use all reasonable and convenient care to diminish the amount of his own pecuniary damage.—1 Sedgw. on Dam. (7th Ed.) pp. 56, 166, n. The case of Illinois Cent. R. R. Go. v. Finnegan, 21 111. 646, cited by the appellant’s counsel, is a strong and direct authority in support of this view, as applicable to a case like the present. The same principle is announced in Roberts v. Richmond & Danville R. R. Co., 88 N. C. 560 (s. c., 20 Amer. & Eng. R. R. Cas. 473), where the action was for killing cattle. The court said: “The cow, as the plaintiff testified, was worth from eighteen to twenty dollars for beef, and was his property still. If she could have been sold for that sum, ■ or was worth it to the owner, he should have made such reasonable use or disposition of the cow as would have proportionally diminished the damages.” There are several rulings in Indiana, holding the value of the animal killed to be the absolute measure of the owner’s damages, but they are based upon a statute expressly declaring such a rule.—Ohio & Miss. R. R. Co. v. Hays, 35 Ind. 173. The doctrine which we have stated above is believed to be better sustained by reason and authority.—3 Wood’s Railway Law, p. 1569, § 423.

In estimating, in a proper case, what amount should be deducted for the value of the carcass, in order to correctly assess the plaintiff’s damages, it is obvious that such deduction should be for the net, and not for the gross value of the carcass,' where it has any such value. This net value is the actual benefit derived, or what was or might have probably been realized from its sale or use, after making reasonable allowance for the expense or time and trouble required in effecting a sale.—Dean v. Chicago & N. Railway Co., 43 Wis. 305.

This deduction is made, not strictly as a set-off, or by way of recoupment to the plaintiff’s claim ; but it is a restriction entering into the rule of law, by which the jury are to be governed in their calculation or assessment of the damages suffered by the plaintiff.

When a recovery is had in cases of this nature, the jury should allow interest on the amount ascertained to be due the plaintiff, from the date of the loss or killing to the time of trial, and not merely from the commencement of the action, as held in some of the States.—Ala. Gt. S. R. R. Co. v. McAlpine, 75 Ala. 113.

The rulings of the court were opposed to these views, and were erroneous.

. There was sufficient conflict in the evidence, in our judgment, to authorize a refusal by the court to give the general charge requested by the plaintiff.

The judgment is reversed, and the cause remanded.