Central of Georgia Railway Co. v. Dumas

131 Ala. 172

• Court: Supreme Court of Alabama
• Decided: November 15, 1901
• Status: Published

Opinion

SHARPE, J.

Extending from where the plaintiff’s mule was injured in. the direction from which the train came, the railroad was straight. The accident was in the day time. On the trial there was evidence tending to show the animal was standing between the rails when tlie train was more than 300 yards from it, that the train’s speed was not slackened until after the animal was struck and that until within a few feet of the ani'mal, the cattle alarm was not sounded. ' Under this phase of the evidence it was open for the jury to infer negligence on the part of the engineer either in failing to see the animal, or in omitting, after perceiving him, to use efforts to stop the train such as in such cases the statutes as well as common prudence requires when available to avoid injury. — Ala. G. S. R. R. Co. v. Boyd, 124 Ala. 525; L. & N. R. R. Co. v. Gentry, 103 Ala. 635; E. T. V. & G. R. R. Co. v. Bayliss, 75 Ala 466 It was the engineer’s duty to keep such constant look-out for obstructions including live stock on or in proximity to the track as was consistent with the performance of his other duties. — E. T. V. & G. R. R. Co. v. Bayliss, supra, s. c. 77 Ala. 435; Western R’y of Ala. v. Sistrunk, 85 Ala. 357; L. & N. R. R. Co. v. Posey, 96 Ala. 261; L. & N. R. R. Co. v. Davis, 103 Ala. 661. If more than this is implied by the charge given at plaintiff’s request, still that charge was not improper as applied to the evidence in this case, since there was nothing to show there was anything to prevent the engineer from keeping a steady look-out.

Charges 3 and 4 refused to defendant each improperly ignore the consideration that the general duty to use due care may have called for preventive effort on the engineer’s part by the animal’s dangerous proximity to, as well as by it® presence on the track. This is made pertinent by some of the testimony which is to effect that on the approach of the train, the mule though not on the track, was eating grass between ends of its cross-ties. There was no error in refusing either of the charges requested by the defendant or in overruling its motion for a new trial.

Affirmed.