Louisville & Nashville Railroad v. Gentry , 103 Ala. 635 ( 1893 )

HARALSON, J.

The plaintiff having made aprima facie case against the defendant, the burden was cast on it, to show that the accident could not have been prevented by the exercise of due diligence, .and the application of all reasonable preventive efforts to avert it.

The engineer, the only eyewitness to the killing of the cow, testified to facts tending to show, that the cow was in a position of danger when he first discovered her, only a short distance ahead of him, — about 25 yards, — at the edge of an embankment, and maintaining a sharp lookout ahead, he had not discovered her sooner. His testimony further shows, that immediately on discovering her, he used all efforts to avoid any danger to her, but she attempted to cross the track ahead of the engine and was killed. On this evidence, under the repeated decisions of our court, the general charge in favor of the defendant, might have been given by the court. What is said in Savannah & Western R. R. Co. v. Jarvis, 95 Ala. 149, to the effect, that the sufficiency of the evidence to overcome plaintiff’s prima facie case, and to rebut the presumption of negligence on the part of the railroad company, is a question of fact for the determination of the jury, and that the general charge in favor of the defendant cannot, in such a case, be given, is an erroneous statement, contrary to the current of our decisions on the question, and to that extent is overruled. — Cen. R. R. & B. Co. v. Ingram, 96 Ala. 152.

The evidence of the witness, Wright, introduced by the defendant (authorized the jury to draw inferences not in harmony with the statements of the engineer, and to believe that he might have discovered the cow sooner than ho did, and in time, to prevent the accident, by employing' proper available means to do so. In this state of the proof, the general charge for the defendant was properly refused. — Rabitte v. Orr, 83 Ala. 186, Boyd v. The State, 88 Ala. 169 ; 1 Brick. Dig. 335, §§ 1, 4.

Affirmed.