Southern Ry. Co. v. Pogue , 145 Ala. 444 ( 1906 )

TYSON, J.

The counts of the' complaint are the same as those in Southern Railway Co. v. Hoge, (Ala.) 37 South. 439, mutatis mutandis, in which case we hold that the demurrer, which ivas substantially as the one here interposed, was not well taken. We see no reason for departing from that ruling.

The objection taken to the allowance of the amendment of the complaint, and the exception reserved thereto, which were nécessary to a review of the action of the trial court, should be shown by the bill of exceptions. Being shown only by the record of the minutes of the court below, we cannot review that ruling. — Bryan v. Wilson, 27 Ala. 214 ; Tuscaloosa W. Co. v. Mayor and Aldermen of Tuscaloosa, 38 Ala. 516 ; Mahoney v. O’Leary, 34 Ala. 97, 99.

It is next insisted that the affirmative charge requested by defendant should have been given, because, first, the evidence unclisputedly and affirmatively showed -that the servants of defendant in operating the train were not guilty of any negligence; second, there was no proof of the ownership of the mare by plaintiff; and, third, this action was brought for the lulling of a horse, whereas the evidence shows that the animal killed was a mare. We shall dispose of these insistences in the inverse order in which they are made:

It is true the complaint is for injuring or killing a horse, and it is also true that the animal injured was a mare. But this does not constitute a variance. The word “horse” is broad enough to include, and does include, the female sex of that genus, and therefore a mare is included in it.

It is also true that there was no direct testimony that plaintiff owned the mare shown to have, been injured; but one of the witnesses, in describing the conditions of the place where the injury occurred, said: “I saw signs of blood and hair on the track. The hair looked like the hair of plaintiff’s horse.” This, we think, is some evidence of plaintff’s ownership of the mare that was admitted to have been injured.

On the question of negligence cel non, the evidence tends to show that after the mare was seen by the engineer, and after she had actually gotten upon the track, she ran along it a distance of some 40 or 50 yards before she was overtaken by the engine, and then carried about 40 yards before she was knocked off. The engineer admits he saw her approaching the track some 15 or 20 feet from it before going on it. ' How far he was from the point where she got upon the track when he saw her, and when he says he applied the air brakes and blew the stock alarm, he did not state; nor did he know how far the train ran after he applied the air brakes. The speed of the train at the time he saw her was between 25 and 30 miles an hour, and he stated that in his judgment the train could not have been stopped in less than 100 yards, lie did not remember whether or not he reversed his engine; nor did he testify that he used all the appliances at hand to stop the train in order to avoid the injury. It is true, he stated he did all he could to stop the train and'prevent the injury. But it is inferable that all he did was to apply the air brakes. The court was not bound to accept his opinion that the-train could not have been stopped within loss than 100 yards. But, conceding that it could not have been stopped in a less distance than stated, it is not shown with any degree of certainty but that his train traversed a greater distance than 100 yards after he saw the mare approaching the track and before the engine struck her. He could have seen her 50 .yards away as she approached the track, and if ■ he did see her it is inferable that his train traveled more than 100 yards before it overtook her, and more than 150 yards before knocking her off. But, if he did not see her, the track being straight, it was open to the jury to find that he could have done so by keeping a proper lookout, and therefore he was negligent in that respect. So, then, under either aspect of the inferences afforded by the evidence, the question of negligence was for the jury; and the charge was properly refused.

Charges 2, 3, 5, and 7 were properly refused on account of the omission to hypothesize the fact that the engineer was keeping a proper lookout, and might not have discovered the mare earlier, and that the train was property equipped. This last criticism applies also to charges 4, 6, and 8. Their refusal was also proper.Central of Ga. Ry. v. Stark, 126 Ala. 365, 28 South. 411 ; Cen. of Ga. Ry. v. Turner, 145 Ala. 441 ; 40 South. 335. The case of L. & N. R. R. Co. v. Brinkerhoff, 119 Ala. 606, 24 South, 892, is clearly wrong on this point, and has been practically overruled.

Charge 3, given at the request of the plaintiff, asserts a correct proposition of law. If abstract, this is not a ground of reversal. The facts of the case are essentially different from those shown by the record in Southern Railway Co. v. Hoge, supra, relied upon by appellant as supporting its contention that the affirmative charge should have been given.

Affirmed.

Weakley, O. J., and Simpson.and Anderson, JJ., concur.