6 Div. 717.
October 26, 1922.
Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.
Huey Welch, of Bessemer, for appellant.
The same decree of care required of the operatives of a train to prevent injury to persons or stock is not required to prevent injury to dogs. 195 Ala. 290, 70 So. 162; 205 Ala. 550, 88 So. 661; 81 So. 852; 200 Ala. 600, 76 So. 958. If the dog was killed while trying to pass under the moving train, or as the result of coming suddenly on the track in the dark, no liability could be imposed upon defendant. 129 Ala. 457, 29 So. 594; 126 Ala. 365, 28 So. 411; 119 Ala. 606, 24 So. 892; 143 Ala. 149, 42 So. 108; 119 Ala. 611, 24 So. 373. The agility and intelligence of the dog, and his ability to appreciate and escape from danger of a moving train, were involved in this case, and evidence to that end should have been permitted by defendant. 195 Ala. 290, 70 321 So. 162; 205 Ala. 550, 88 So. 661; 81 So. 852. The value of the dog was, under the law, required to be fixed as of the date of his killing. 48 So. 348; 152 Ala. 599, 44 So. 869; 112 Ala. 624, 20 So. 918; 107 Ala. 300, 19 So. 966, 54 Am. St. Rep. 93; 206 Ala. 432, 90 So. 605; 22 C. J. 182; 136 Ala. 499, 34 So. 836.
Goodwyn Ross, of Bessemer, for appellee.
Where animals are killed by a train upon a straight track, the affirmative charge for defendant is properly refused. 131 Ala. 671, 31 So. 21. Charge 5, refused to defendant, was defective. 59 So. 169. The fact that taxes had not been paid on the dog does not affect a railroad's liability for negligently or wrongfully killing the same. 2 Ala. App. 537, 56 So. 601; 142 Ala. 575, 38 So. 839, 4 Ann. Cas. 512. The burden of proof placed upon the railroad by the statute is the same as applied to dogs as to other animals. Code 1907, § 5476; 61 So. 881; 194 Ala. 368, 70 So. 132.
The complaint in this case is clearly not subject to demurrer. So. R. Co. v. Hobbs, 151 Ala. 335, 43 So. 844; Gordon v. T. C. I. R. Co., 164 Ala. 203, 51 So. 316.
When plaintiff showed that his dog was killed by defendant's train, the burden was then placed on defendant to show that the killing was not negligently done. Code, § 5476; L. N. R. Co. v. Fitzpatrick, 129 Ala. 322, 29 So. 859, 87 Am. St. Rep. 64; A. G. S. R. Co. v. Wedgworth (2 Div. 803 Ala. Sup.) 94 So. 549. See, also, the opinion of Walker, P. J., in Selma St. Sub. R. Co. v. Martin, 2 Ala. App. 537, 56 So. 601, the reasoning of which to that conclusion we fully approve. Those decisions show that dogs are "property," and are included in that term as used in the statute fixing the burden of proof.
Post, p. 514.
The trial judge properly instructed the jury as to the burden of proof under the statute (Code, § 5476), and as to the principles which govern in determining liability for the negligent killing of dogs. Ala. City, etc., R. Co. v. Lumpkin, 195 Ala. 290, 70 So. 162; Tenn., etc., Co. v. Daniel, 200 Ala. 600, 76 So. 958; Hines v. Schrimscher, 205 Ala. 550, 88 So. 661.
It cannot be affirmed as a matter of law, that the evidence showed that defendant was not guilty of negligence in killing the dog, however plausible the argument may be in support of that conclusion. The general affirmative charge for defendant was therefore properly refused.
Refused charges 3 and 9 were covered by given charge 2.
Charge 4 was properly refused, since section 5355 of the Code, providing that the judgment must be set aside and suit dismissed where the plaintiff recovers an amount below the court's jurisdiction, applies only to monied demands and to suits ex contractu, and not to actions in tort. Woodward Iron Co. v. Keller, 199 Ala. 432, 74 So. 933; Sharpe v. Barney, 114 Ala. 361, 21 So. 490.
Refused charge 5 does not state a correct proposition of law. Appel v. Selma St. Sub. R. Co., 177 Ala. 457, 59 So. 164. Moreover, an instruction in that form is absolutely improper.
There was no evidence tending to show that the engineer did not blow the whistle or ring the bell at the time the dog was killed, nor was there any evidence tending to show that the circumstances did or did not require such a warning to be given. Refused charge 6 was therefore abstract, and its refusal was not error.
Refused charge 7 was substantially covered by given charge 1.
There was nothing in the evidence which tended to show that the dog "came suddenly on the track, in the dark, in front of defendant's train." Whether or not he did so could be only a matter of pure conjecture; and a hypothesis of fact which is conjectural merely cannot support a request for an instruction thereon. Refused charge 8 was abstract, and for that reason properly refused.
The same criticism is applicable also to refused charge 11.
Refused charge 9 was fairly covered by given charge 2. It is however, bad in form, no explanation being given as to the degree of care required to avoid injuring persons or stock; and, the latter question not being involved in the case, such an instruction would, even so, have been abstract.
There was no evidence tending to show that plaintiff had not paid the license tax on the dog, and that matter was not in issue. But, in any event, the nonpayment of the tax was no defense to the action. A. C. S. R. Co. v. Wedgworth, supra.
Refused charge 12 is bad for the reason that it singles out particular facts for the jury to "take into consideration" on the issue of negligence. Stone v. State, 105 Ala. 60, 17 So. 114; Ala. Midland Ry. Co. v. Thompson, 134 Ala. 232, 32 So. 672.
It was proper for plaintiff to show the qualities of the dog as a basis for valuation, as that he was a fast dog, and had a good mouth for a fox dog.
It was proper, also, the dog being a fox hound trained to hunt foxes, to qualify the witnesses who testified to the qualities and value of the dog by showing that they had been fox hunters, and had owned or observed fox dogs and their action for 25 or 40 years.
One of plaintiff's witnesses testified on cross-examination that the dog was fast, and very active, quick in his motions, with no impediment in his operation, and that he "knew of nothing that would keep him from getting out of the way of a wagon, or automobile, or anything of that kind." Defendant's counsel asked him further:
"Do you know of anything that would keep him from getting off of a railroad track if a train was coming?"
This called for a mere opinion of the witness, as to which the basis for judgment was already before the jury. The question was properly excluded.
The same question, substantially, was propounded to another witness, and, for the reason stated, it also was properly excluded. A question to the same witness, "He was a dog that in your opinion knew danger when he saw it, didn't he?" was objectionable for the same reason, viz. that it called for the purely speculative opinion of the witness.
We have examined each of the rulings on evidence, as presented by the assignments of error, and find nothing which would justify a reversal of the judgment.
Appellant complains insistently of certain remarks made by counsel for plaintiff in connection with appellant's objections to evidence, the tenor of the remarks being that counsel were indifferent to appellant's objections, and were willing for appellant to have any sort of exceptions desired. Complaint is made also of the comment of plaintiff's counsel upon the "voluminous objections of defendant's attorney," in the hearing of the jury. It may be that some of those remarks are subject to criticism, and should not have been indulged in, viewing them from the standpoint of professional etiquette. But the regulation of such matters must, in general, be left to the trial court, and, except, perhaps, in extraordinary cases, the mere badinage of counsel during the trial of a cause will not be held as prejudicial in such degree as to warrant the reversal of the judgment.
We can discern no such prejudice here, and we do not think the remarks complained of can justify such action in this case.
For the reason already stated, we think that none of the grounds urged in the motion for a new trial are well taken, and that the motion was overruled without error.
Let the judgment be affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.