Opinion
4 Div. 351.
March 20, 1928.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
Action for damages by E. S. Fannin against the Atlantic Coast Line Railroad Company for negligent killing of a mule. From a judgment for plaintiff, defendant appeals. Affirmed.
Arrington Arrington, of Montgomery, for appellant.
If the engineer is competent and is keeping a proper lookout, and does not and cannot see the approaching animal on or in dangerous proximity to the track, and comes suddenly thereon, so close to the train that the engineer cannot stop in time to prevent the accident, the company is not liable for the injury done to the animal. The affirmative charge as requested should have been given for defendant. Central of Ga. Ry. v. Stark, 126 Ala. 365, 28 So. 411; N.C. St. L. R. Co. v. Hembree, 85 Ala. 485, 5 So. 173; E. T. V. G. R. Co. v. Bayliss, 74 Ala. 161; Bugg v. Meredith, 214 Ala. 264, 107 So. 805.
Ballard Brassell, of Troy, for appellee.
The evidence presented a question for the jury's determination, and the affirmative charge was properly refused, N.C. St. L. R. Co. v. Prince, 212 Ala. 499, 103 So. 463.
The plaintiff's mule was killed by being struck by one of defendant's locomotives. The plaintiff having made out a prima facie case, the burden rested on defendant to acquit itself of negligence.
As defendant's locomotive and train of 40 cars were approaching the point on its track where the plaintiff's mule was killed, at a rate of speed variously estimated at from 20 to 40 miles per hour, and at which place was a side track upon which was standing a freight car and a flat car loaded with logs, the plaintiff's mule came from between the flat cars coming into the vision of defendant's engineer 15 or 20 steps ahead of the locomotive and ran down the track in front of the locomotive, and within the vision of the defendant's engineer 137 steps, when it was struck by the locomotive, and so injured that it had to be killed. As soon as the mule came on the track, the engineer began, and continued, to blow the whistle until the mule was struck, but, according to some of the testimony, did not apply the brakes until about the time the mule was struck. This, under the facts, make a question for the jury as to whether the defendant had acquitted itself of negligence. It may not have been possible to have stopped the train within the distance of 157 steps, yet, if the brakes had been promptly applied, the speed of the train might have been so reduced that the mule would not have been struck. The question was for the jury, and the judgment is affirmed.
Affirmed.