Thomas v. Southern Ry. Co. , 113 Miss. 315 ( 1916 )

Ethridge, J.,

delivered the opinion of the court.

J. W. Thomas filed suit against the Southern Railway Company in the circuit court of Tishomingo county for killing a cow belonging to the plaintiff, valued at sixty dollars. The proof for the plaintiff showed that the cow was killed by the train of the railroad company just across the line of Alabama, and the law of Alabama covers the liability in this case. The proof showed that the cow had her horn knocked off, her hind legs broken, was otherwise bruised, and was found by the railroad track in this condition; that she was buried by the section crew of the railroad company. There were no eyewitnesses introduced by the plaintiff, and the plaintiff relied on the killing by the train to prove his claim. When the plaintiff rested its case the railroad company introduced R. B. Taylor, the locomotive engineer, to exculpate itself of negligence in the killing. He testified he was going east on the night of the 5th of January, the date the killing was shown to have occurred, and that just after they passed Bear Creek Bottom, over in Alabama, he hit an object but did not know what it was. It was colored white. He was asked how far ahead was the object when it appeared on the track, and answered that, at the speed he was going, ‘ ‘ I judge thirty to fifty yards. ’ ’ He was then asked the question, “'Would it have been possible for you to have stopped in that distance?” and answered: “No, sir; not going the speed I was.” He stated: That he did not know whether it was Mr. Thomas ’ cow he struck or not; that he hit something; he didn’t know what it was; “just a bulk of some kind.” He was then asked, “A man going as fast as you were going, on a dark night, can’t always tell what he has hit?” and answered, “No, sir.” Asked as to the time, he stated it was about two-thirty in the morning. This was all the proof introduced to exculpate the defendant, and on this proof the trial court gave a peremptory instruction, which is assigned as error.

We think it was error for the trial court to give the peremptory instruction, under the law of Alabama. See Code of Alabama 1907, sections 5473 and 5476; Southern Ry. Co. v. Parkes, 10 Ala. App. 318, 65 So. 202, and authorities there cited; Southern Ry. Co. v. Blankenship, (Ala. App.), 69 So. 591. The concluding sentence of section 5473, Code of Alabama 1907, reads:

“He (the engineer) must also, on perceiving any obstruction on the track, use all the means within his power, known to skillful engineers, such as applying brakes and reversing engine, in order to stop the train.”

Section 5476, Code of Alabama, reads:

“Railroad Liable for Injuries; Burden of Proof. — A railroad company is liable for all damages done to persons, or to stock or other property, resulting from a failure to comply with the requirements of the three preceding sections, or any negligence on the part of such company or its agents; and when any person or stock is killed or injured, or other property destroyed or damaged by the locomotive or cars of any railroad, the burden of proof, in any suit brought therefor, is on the ráil-road company to show a compliance with the requirements of such sections, and that there was no negligence on the part of the company or its agents.”

In the case of Southern Ry. Co. v. Parks, supra, 10 Ala. App. page 321, 65 So. page 203, it is stated:

“It is the duty of the railroad company to keep a lookout and to frighten away stock in dangerous proximity to the track, as well as to run them off of the track, or from dangerous proximity thereto.”

We think the proof on the part of defendant in this ease fails to meet the requirement of the law of Alabama, and the cause is therefore reversed and remanded.

Reversed and remanded.