Ala. Great Southern R.R. v. Smith

85 Ala. 208

Opinion

STONE, C. J.

The testimony of the engineer was to the effect, that the cow sprang on the track about fifty yards ahead of the train; that the animal was not, and could not be seen, before that time; and that when discovered, all the appliances known to skillful engineers could not have stopped the train in time to save the cow. If this be believed, it was a complete defense to the action. Charge number 2, given at the instance of plaintiff, ignored this principle, and the testimony stated above, and must work a reversal of the judgment rendered. — E. T., Va. & Ga. R. R. Co. v. Bayliss, 75 Ala. 466; Same v. Deaver, 79 Ala. 216; Ala. Gr. So. R. R. Co. v. McAlpine, 80 Ala. 73; M. & G. R. R. Co. v. Caldwell, 83 Ala. 196.

Beversed and remanded.