Louisville & Nashville Railroad v. Davis , 103 Ala. 661 ( 1893 )

HARALSON, J.

1. According to the decisions of this court, if a railroad company knowingly runs its trains, in the absence of intervening unusual natural causes, under such conditions as would make it impossible for those in charge to prevent injuring stock straying on its track, and injury results, it is accountable for the loss. And these conditions are said to exist, when the train is run in the night time, at such a fast rate of speed that, by reason of the darkness of the night, stock can not be seen by the aid of a headlight, in time to prevent the injury, by use of the ordinary means and appliances usually found on railroad trains. — Central R. R. & B. Co. v. Ingram, 98 Ala. 395; Birmingham M. R. R. Co. v. Harris, 98 Ala. 326.

2. This principle is consistent with that other, so often declared, that if the obstruction appear on the track, or in dangerous proximity to it, so near to it, that no sufficient space intervenes for stopping the train, then a failure to resort to some, or all of the precautionary measures to stop the train would be blameless, if a proper lookout to discover the obstruction had been maintained. And the rule provides, that proof of injury raises the presumption of negligence, and casts on the railroad company the burden of disproving it. — Birmingham M. R.R. Co. v. Harris, supra; E. T. V. & G. Railroad Co. v. Bayliss, 74 Ala. 159 ; N. O. & S. Railroad Co. v. Jones, 68 Ala. 48 ; M. & O. Railroad Co. v. Williams, 53 Ala. 595.

3. If the defendant’s evidence were all, or, if there were no evidence in the case in conflict with it, we would have no difficulty in holding, that the general charge should have been given for the defendant. But, the plaintiffs’ evidence was relevant, — if weak and inconclusive, — to show that the colt was on and running along the track, for 130 steps before it was struck, whereas the engineer testified, when first seen, it was at the foot of a five feet embankment, climbing up to cross the track, and was run over. His statement forbids the idea, that the animal had run along and on the track at all. If it be true that it had been running 130 steps on the road bed before it was struck, defendant’s evidence receives contradiction at that point, and it would also tend strongly to show, that the engineer had not been maintaining a proper lookout, or he might have seen the colt in time to save it. The case is not different in principle from that of the L. & N. R. R. Co. v. Gentry, ante, p. 635.

Under the evidence, we apprehend the court below could hardly have given the general charge for the defendant, but properly referred the matter to the jury.

Affirmed.