Alabama Midland Railway Co. v. Parker

112 Ala. 479

• Court: Supreme Court of Alabama
• Decided: November 15, 1895
• Status: Published

Opinion

McCLELLAN, J.

The plaintiff made a prima facie case by showing that the cow was killed by a train of the defendant. The evidence for the defendant was to the effect that the animal came on the track immediately in front of the engine as if to cross over it, and so near to the engine that it was impossible to avoid striking it, and further, that it was not seen by the engineer, and, owing to the darkness and conformation of the roadbed, could not be seen until it came upon the embankment and track. In rebuttal, plaintiff’s evidence tended to show that the embankment at that point was so high and its sides so precipitous that the animal could not have gotten upon the track there. On this state of case, the tendencies of the evidence involved a conflict which was properly left to the jury. The court did not err in refusing to give the affirmative charge for the defendant, nor in overruling its motion for a new trial.

Affirmed.