1. RAILROADS. Prima-facie statute held applicable to killing of animal, notwithstanding defendant's proof of care in operation of another train.
In a suit for value of a cow killed by a railroad locomotive, where the proof for the plaintiff shows that the cow was killed by a train traveling west, and where none of the train crew was introduced by the defendant, the prima-facie statute is applicable, although the defendant introduced proof that the cow was killed by an east-bound train and made proof of all the facts pertinent to the operation of the train which would exonerate the company from liability, and which, if true, would eliminate the prima-facie statute as to the operation of such train.
2. RAILROADS. Refusal of instruction for defendant held error on proof of care in operation of train killing animal.
Where the proof for the plaintiff showed the cow was killed by a west-bound train and proof for the defendant showed that the cow was killed by an east-bound train and made proof of all the facts attending the operation of the train and the killing of the cow which showed due care in the operation of the railroad, it was error to refuse the defendant an instruction that, if they believed the cow was killed by the east-bound train of the defendant testified to by its witnesses, the jury would find for the defendant.
ETHRIDGE, J., delivered the opinion of the court.
The appellee sued the appellant in the justice of the peace court for one hundred and sixty-five dollars for the wrongful killing of one cow. There was a judgment for said amount in the justice court, and the case was appealed to the circuit court, where the case was again tried and verdict rendered for sixty-five dollars from which judgment the defendant appeals.
The cow was killed near mile post No. 99 in Carroll county. A witness for the plaintiff testified to seeing the cow killed by a train traveling west about two o'clock p.m. He stated that the whistle blew, but that the train did not slow down and that the track at the point where the accident occurred was visible for about four hundred yards from the east. The train crew of this train was not introduced by the defendant, but a train crew of a train traveling toward the east testified that they struck a cow near the said mile post on the said day, and testified that they were approaching the scene of the accident on a curve, and that on account of the curve the engineer could not see the cow until too close to the place of accident to stop the train; that when he saw the cow she was crossing the track; that he blew the whistle, put on the brakes, and did all that could be done to prevent the injury. He further testified that the fireman was busy with his duties firing the locomotive, but that the fireman could have seen the cow from his side of the locomotive had not his duties occupied his attention. The fireman testified to like effect. They both testified that after they discovered the cow they did all that could be done to prevent the injury.
The plaintiff obtained an instruction on the prima-facie statute, while the defendant obtained an instruction that the prima-facie statute was not applicable, and that the facts had been disclosed in evidence by witnesses. The defendant requested and was refused an instruction that if the jury believed from the evidence introduced that plaintiff's cow was killed by an east-bound train as testified to by the witnesses for the railroad company, then it was the duty of the jury to return a verdict for the defendant. The defendant also requested a peremptory instruction which was refused.
A number of assignments of error have been argued; but we think there is no merit in any of them, except the refusing of the instruction that, if the jury believed the cow was killed by the train traveling east, as testified to by the witnesses for the defendant, they should find for the defendant.
The testimony of these witnesses shows that they did all they could do after discovering the cow on the right of way to prevent the injury, and that the train was in good condition, properly equipped, and that the fireman was engaged about his duties, and that it was necessary for him to be so engaged to properly operate the train at the particular place.
If the injury was inflicted by the east-bound train, the defendant produced the facts which would exculpate it from liability; but if the injury was inflicted by the west-bound-train, on the proof in this record there would be liability, and the prima-facie statute would be applicable, as the employees of the railroad company operating the train did not testify. The application of the prima-facie statute should have been limited to the train going west and should not have been applied to the train going east under the facts in this record.
The judgment will therefore be reversed, and the case remanded for a new trial.
Reversed and remanded.