7 Div. 21.
March 19, 1931.
Appeal from Circuit Court, Cleburne County; R. B. Carr, Judge.
Merrill, Jones Whiteside, of Anniston, for appellant.
Under Code, § 9952, the duty to take precautions against inflicting injuries to live stock on the track arises not only when the engineer sees the animal on the track, but also when by the exercise of due diligence he could have seen it, and a failure in either of these respects is negligence for which the railway company is liable. Louisville N. R. Co. v. Brinkerhoff, 119 Ala. 606, 24 So. 892; Louisville N. R. Co. v. Posey, 96 Ala. 262, 11 So. 423; Central Railroad Banking Co. v. Lee, 96 Ala. 444, 11 So. 424; Central of Georgia R. Co. v. Stark, 126 Ala. 365, 28 So. 411. The engineer, on perceiving any obstruction on the track, must use all the means within his power, known to skillful engineers, such as applying the brakes and reversing the engine in order to stop the train. Code 1923, § 9952; Brown Flowers v. Central of Georgia R. Co., 197 Ala. 71, 72 So. 366; Louisville N. R. Co. v. Young, 153 Ala. 232, 45 So. 238, 16 L.R.A. (N.S.) 301; Louisville N. R. Co. v. Holland, 173 Ala. 675, 55 So. 1001. Trainmen may act upon the presumption that a dog will get out of the way in time to avoid injury or that it will not move into danger, provided there is nothing in the circumstances of its approach or its manner of being upon the track to indicate to a reasonably prudent operator that it is helpless or indifferent to its surroundings and danger. Hines v. Schrimscher, 205 Ala. 550, 88 So. 661; Nashville, C. St. L. R. Co. v. Jones, 209 Ala. 250, 96 So. 79; Alabama City G. A. R. Co. v. Lumpkin, 195 Ala. 290, 70 So. 162; Louisville N. R. Co. v. Coxe, 218 Ala. 25, 117 So. 293.
Knox, Acker, Sterne Liles, of Anniston, for appellee.
Where given charges are confused and uncertain, which may result in misleading tendencies, the adversary party should request explanatory charges. Harris v. Basden, 162 Ala. 367, 50 So. 321; Sims v. Ala. Great So. R. Co., 197 Ala. 151, 72 So. 328; Cartlidge v. Sloan, 124 Ala. 596, 26 So. 918; Vandiver Co. v. Waller, 143 Ala. 411, 39 So. 136; Navco Hardwood Co. v. Bass, 214 Ala. 553, 108 So. 452; Knights of Modern Macabees v. Gillespie, 14 Ala. App. 493, 71 So. 67. Where an engineer, as soon as he sees an animal on the track, or perceives the danger the animal is in, uses all the means at his command to stop the train and prevent injuring the animal, the railroad is not liable. Southern R. Co. v. Freeman, 16 Ala. App. 687, 81 So. 135; Sands v. Louisville N. R. Co., 156 Ala. 323, 47 So. 323; Brown v. St. Louis S. F. R. Co., 171 Ala. 310, 55 So. 107. An engineer is only required to keep such constant and careful lookout for animals as is consistent with the discharge of his other duties. Central of Georgia R. Co. v. Williams, 200 Ala. 73, 75 So. 401; Central of Georgia R. Co. v. Dumas, 131 Ala. 172, 30 So. 867.
Usually the duty owing by the operatives of a train of cars to an animal on the track is not discharged by a proper equipment and operation of the train, and the diligent and skillful use of the appliances to avoid the injury after a discovery of the presence of the animal on the track, as hypothesized in given charges 5 and 8, but it is the duty of the engineer to keep such constant lookout for animals on the track as is consistent with the performance of his other duties. Cent. of Ga. Ry. Co. v. Stark, 126 Ala. 365, 28 So. 411; Cent. of Ga. Ry. Co. v. Dumas, 131 Ala. 172, 30 So. 867; Nashville, C. St. L. Ry. Co. v. Bingham, 182 Ala. 640, 62 So. 111; Cent. of Ga. Ry. Co. v. Williams, 200 Ala. 73, 75 So. 401; Id., 202 Ala. 496, 80 So. 880.
But this rule does not apply to dogs. They are said to have the agility and celerity in avoiding and escaping danger not possessed by the ordinary lower animal. From this instinct one may presume that a dog will avoid danger, or not move into it. But the presumption that he will avoid an existing danger is of course not indulged if he is helpless or indifferent to the danger. Alabama City G. A. Ry. Co. v. Lumpkin, 195 Ala. 290, 70 So. 162; Tennessee, A. G. R. Co. v. Daniel, 200 Ala. 600, 76 So. 958; Hines, etc., v. Schrimscher, 205 Ala. 550, 88 So. 661; Louisville N. R. Co. v. Coxe, 218 Ala. 25, 117 So. 293; 52 Corpus Juris, 24.
From this rule it follows that an engineer is not under duty to use care in discovering the presence of a dog on the track unless there is something in the surroundings which would stimulate such duty other than his mere presence on the track in the open country, where no statute applies. Louisville N. R. Co. v. Joe Green, post, p. 557, 133 So. 294; 52 Corpus Juris, 24.
As this suit is for the death of a dog, charges 5 and 8 were given for defendant without error.
Given charge No. 9 states the rule of duty to which we have referred, unless it may be said that it is fatal not to include the alternative "that it is indifferent to its surroundings." The charge does hypothesize that the dog is helpless. If his attention is so engrossed as that in all probability he will not endeavor to escape the danger and that is reasonably apparent, he is helpless in a reasonable sense as regards the danger. The dog then may truly be said to be helpless if he is indifferent to his surroundings. Those words are said to be appropriate under such circumstances, but it is not error to omit their use when the effect is otherwise expressed. Charge 9 was given, therefore, without reversible error.
Given charge No. 1 may be improved by express reference to the engineer, and may be of such nature that it might have been refused, but it is not reversible error to give it.
We find no reversible error, and the judgment is affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.