Central of Georgia Railway Co. v. Main

HABALSON, J.

The principle often declared is, that “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 cannot 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.” — L. & N. R. R. Co. v. Davis, 103 Ala. 663; L. & N. R. R. Co. v. Cochran, 105 Ala. 354; C. of G. R. R. Co. v. Stark, 126 Ala. 367.

These and other decisions of the Court recognize the principle, that the foregoing principle is not applicable where the engineer is competent, is keeping a proper lookout and does not see and can not see the approaching animal on, or in dangerous proximity to, the track, and it comes suddenly thereon so close to the train that the engineer cannot stop in time to- prevent the accident. In such case the company is not liable. — C. of G. R. R. Co. v. Stark, supra; L. & N. R. R. Co. v. Brinkerhoff, 119 Ala. 606.

Conceding that, on the evidence of the engineer, the company was not at fault,' in that the mule may have come too suddenly on the t track'to prevent its being killed, yet his evidence shows.that he was running his engine down grade about twenty miles an hour; that he had just come out of a curve and struck a straight track, when he saw the mule about thirty feet from the engine and ten feet from the end of the cross ties, running directly towards the track in front of the engine, and was struck as it got on the track; that, running at the rate he was going, the train could have been stopped in about two hundred yards, and that by the aid of the headlight he could have discovered the mule one hundred yards.

This evidence shows the running of the train under such conditions as to make the company liable for killing the animal, unless it came suddenly on the track in front of the engine in such close proximity to- it as to render striking it unavoidable. It was upon this theory of fact, that defendant requested the general charge. But on this point the evidence in the case is in conflict. There was evidence for the plaintiff, from which the jury might have inferred and found that the mule -did not come suddenly on the track, but that it got on at a private road crossing abo-ut one hundred and six feet from the point where it was struck and killed, and travel ed down the track to- that point. The plaintiff testified that he weflt to the place where the mule was killed, on the 26th of the month (the injury having occurred on the 24th) and found mule tracks at the crossing and on the roadbed a short distance before reaching the place where the mule was killed, and could not find any mule tracks along the right of way to show where the mule had come from the right of way upon the railroad track, but that there had been a recent rain at that point. There was also evidence tending to show, that the hell was not rung nor the whistle blown, nor that the speed of the train was slackened.

Under such, evidence the general charge requested by defendant was properly refused. Charge 2 requested by defendant was also properly refused. It was abstract in hypothesizing that the engineer used, at the time, all appliances and powers known to skillful engineers to stop the train, whereas, he testified that the mule came so suddenly in front- of the train and so close to the engine, that he did not have time to do anything to stop the train or 'scare the mule from the track, before it was struck.

The charge given for the plaintiff was in accordance with our holdings on the subject. Authorities supra.

Affirmed.

McClellan, C. J., Dowdell and Denson, J.J., concurring.