Southern Railway Co. v. Penney

ANDERSON, J.

Section 5476 of the Code of 1907 places the burden of proof, when stock is killed by their locomotives or cars, upon railroads to show a compliance with the statute as to signals, etc., as well as to negative any other negligence, regardless of the place of the killing. This statute has undergone many changes in the different codes (see note to section 5476 of the Code of 1907), and as it existed in the Code of 1896 as section 3443, and as construed in the case of A. G. S. R. R. v. Boyd, 124 Ala. 525 , 27 South. 408 , the burden was not on the railroad, unless the killing was at a *190 place covered by the three preceding sections. But the statute, as it appears in the present Code, is similar to the one considered in the case of Birmingham Mineral R. R. v. Harris, 98 Ala. 326 , 13 South. 377 , and places the burden upon the railroad to acquit itself of negligence regardless of the. place of the killing or injury to the stock. It is true, the alleged .killing of the mule in question was prior to the present Code, but the case was tried subsequent to 'the adoption of the present Code of 1907, and as the change relates to a rule of evidence, the statute as it appears in the present Code, was applicable to this case. — Section 10 of the Code of 1907. The trial court did not err in refusing charges 2 and 3, requested by the defendant.

While the plaintiff’s evidence was circumstantial, yet it afforded an inference for the jury that the mule was injured by a train of defendant, which resulted in the death of said mule. It is true White denied that his train, the one that killed the mule, was the one that struck the mule; hut the jury could have inferred that the mule was injured by some other train, as the proof did not show that no other train passed between the time the mule was turned in and was discovered the morning of the 8th. The trial court did not err'in refusing the general charge requested by the defendant.

Charge 5, refused to the defendant, if not otherwise bad, is contradictory and inconsistent. It instructs the jury, in effect, to believe White as to his freedom from fault, notwithstanding they may disbelieve his denial that the mule was killed when the mare was and under the same circumstances. In other words, if they do not believe White as to one material part of his evidence, they must believe him as to other parts.

The other charges refused to the defendant are so manifestly bad as to merit no comment.

*191 The trial court did uot err in refusing the motion for a new trial. It is insisted in brief that the verdict was contrary to charge 17, given at the request of the defendant. The said charge is not set out in full, and is merely alluded to in the motion for a new trial, but which does not set out the charge, even if it would be sufficient, for it to appear in the motion, which we do not decide.

The judgment of the circuit court is affirmed.

Affirmed.

Dowdell, C. J., and McCledian and Sayre, JJ., concur.