Mobile & Girard R. R. v. Caldwell , 83 Ala. 196 ( 1887 )

STONE, C. J.

— When live-stock is killed or injured by a moving train on a railroad, and suit is brought for the injury, the plaintiff need prove nothing but the fact of the injury, and that -it was inflicted by the moving train. This makes for him a prima facie case; and if there be no other proof, he will be entitled to a verdict. To state it differently: When injury is shown to have been inflicted by the train, the burden is then shifted on to the railroad company to acquit itself of the negligence the law imputes to it. Our statutes — Code of 1876, §§ 1699, 1700 — have prescribed certain duties to be observed by officers having control of trains. Other duties are required of railroad companies. The locomotive must be supplied with a proper head-light, and the train with sufficient and proper brakes, with proper agencies for applying them promptly. A watchful look-out must be steadily maintained, for the discovery of obstructions on the track; and it is no excuse for the railroad, that the obstruction was not discovered, if by prudent watchfulness it could have been discovered. Failure to maintain a steady look-out is itself culpable negligence. We need not repeat the statutory duties prescribed for the varying emergencies. — Code, §§ 1699, 1700.

But, as we have frequently said, infallibility is not attainable, and the impossible need not be attempted. _ The statute 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 requirments of the” statute. That is, to justify a verdict against the railroad, the injury must have resulted from — been produced by — its negligence, or failure to comply with statutory requirements. In the absence of all exculpatory proof, the law presumes negligence, and that the injury was the result of it. It is not, however, a conclusive presumption. It may be rebutted and overcome. "When there is testimony tending to show the circumstances attending the injury, it then becomes a question of fact for the jury to determine, whether the presumption against the railroad has been overcome. It is effectually overcome, whenever it is satisfactorily shown to the jury that the officers in charge of the train performed all the duties required of them, as pointed out above. So, it is equally overcome, if the testimony reasonably satisfies the jury that there was no inattention or carelessness in failing to discover the obstruction sooner, and that, when discovered, no diligence or appliances eould have prevented the disaster. "We repeat, the impossible need not be attempted; and if attempted unsuccessfully, this does not authorize a verdict against the railroad company. In such case, the damages do not result from a failure to peform statutory, or other duties, but from unavoidable accident. — E. T., Va. & Ga. R. R. Co. v. Denver, 79 Ala. 216; Ala. Gr. So. R. R. Co. v. McAlpine, 80 Ala. 73.

There was testimony tending to show that the engineer was steadily and faithfully on the look-out, and that he discovered the ox on the track as soon as he-could be discovered. He also testified, that when he discovered the ox, the train was too near upon him to be stopped in time to save him. If this be true, and if the train was properly supplied with brakes, and they and the other agencies were properly applied, this was a defense to the action. So, if the ox, when discoverable, was so near that a proper supply of brakes, promptly handled, and other appliances, could not have averted the catastrophe, then no liability for the damage should attach on this account.

A question was raised on the failure of the engineer to sound the cattle-alarm. He testified, that he could not give such alarm, and signal the brakeman, at one and the same time. Something must be confided to the prudent discretion o£ the engineer; and if, in the sudden emergency, he should honestly err in the selection of the best preventive measures, this should not, of itself, fasten a liability on the railroad company. Infallibility is neither required nor expected.

The Circuit Court erred in the affirmative charge given, and in refusing the third charge asked. The reasons are given above. The jury must determine the truth and sufficiency of the excuse given for not sounding the cattle-alarm, and, also, whether, if sounded, it would probably have frightened the ox away. Charges one and two, asked by defendant, assert correct legal principles, except that charge two is too meagre. The hypothesis should have embraced the inquiry, whether the engineer was diligent in looking out for obstructions.

Reversed and remanded.