Kansas City, Memphis & Birmingham Railroad v. Wagand , 134 Ala. 388 ( 1901 )

SHARPE, J.

Being employed! by defendant’s contractor, plaintiff was using his team to draw a wheeled scraper on a high part of defendant’s road-bed when a train came around a curve and into s-iglit five or six hundred feet away. Plaintiff turned the team off the track, but a wheel of the scraper was struck by the train and as a result of the jerk, or in some other way, the train also struck one of the mules, breaking a bone -of its hip. Afterwards plaintiff told defendant’s section foreman he would not do anything with the mule, or anything for it, and did not want it; that if it lived it would still he crippled and that it would be better “to kill it out of its misery.” The foreman then told plaintiff to lead the mule Over the hill and he would kill it or have it killed. Thereupon, plaintiff carried the animal to the place so designated, left it there, and there is nothing to show lie ever afterwards did any tiling for or with it. The next day after plaintiff so left,the mule the section foreman, claiming to have authority from his company to do so, sold the mule for $5 to a third person who subsequently cured and kept it.

In his complaint the plaintiff counts first in case, second in trover and third for a willful injury to the inule; hut as to the latter* count the jury were charged affirmatively for the defendant.

1. Though defendant’s servants who were running the train may not have known the road work was in progress, they were under the general duty to keep a lookout in order to avoid injury to stock ivhether trespassing or rightfully on the track; and since plaintiff was using his team rightfully he is in position to complain of any failure to keep such lookout, as well as of any neglect of the further duty which rested on defendant to use diligent efforts to avoid injury to' the team after its perilous position) Avas discovered. The space over which the train had to pass before reaching the team after it came Avithin range of the trainmen’s vision, together Avith the train’s velocity at the place of the accident, were circumstances in evidence which may have afforded a.n inference opposed to testimony of defendant’s witnesses concerning both the lookout and the efforts made at checking speed, and, therefore, the question of negligence was properly left to the jury.

2. Without evidence that the engineer Avas alone charged with those duties, especially that of looking ahead, the jury had the right to consider of fault in the the conduct of the fireman as Avell as of the engineer.

3. The owner of personal property ma,y divest himself of title by abandonment; and after doing so he cannot maintain a trover against one who thereafter assumes the ownership. — Wyman v. Hurlburt, 12 Ohio, 81; 40 Am. Dec. 461; 1 Am. & Eng. Ency. Law, 2. This can be only where the owner has intended to relinquish his property rights; and where the evidence on the point is conflicting or leaves room for contrary inferences, the question of abandonment vel non is for the jury. Here, however, the evidence is without conflict and the plaintiff’s declarations and conduct above referred to, lead solely to' the conclusion that the plaintiff both entertained and carried out the intention of abandoning his property in the animal. In view of such proof defendant was entitled to have the jury charged upon the assumption that the plaintiff had no interest in the animal when the suit was brought, and!, therefore, no right to recover under the second count of the complaint. For the refusal of charge 4 requested by' defendant, the judgment must be reversed and 'the cause remanded.

Reversed and remanded.