Opinion
6 Div. 638.
April 27, 1922.
Appeal from Circuit Court, Jefferson County; J. B. Aird, Judge.
Nesbit Sadler and J. M. Gillespy, Jr., both of Birmingham, for appellant.
The court erred in refusing the affirmative charge as to the amended count. 192 Ala. 354, 68 So. 291; 13 Ala. App. 510, 69 So. 304; 16 Ala. App. 569, 80 So. 143; 109 Ala. 128, 19 So. 519; 145 Ala. 432, 40 So. 512; 192 Ala. 486, 68 So. 815. The court erred in refusing to direct a verdict for the defendant. 14 Ala. App. 288, 69 So. 993; 85 Ala. 481, 5 So. 173; 153 Ala. 139, 44 So. 962, 14 L.R.A. (N.S.) 261.
Gibson Davis, of Birmingham, for appellee.
The judgment of the lower court should be affirmed, on the authority of 145 Ala. 443, 40 So. 355.
The evidence in this case was sufficient from which the jury could reasonably infer the plaintiff's cow was struck by defendant's engine within one-quarter of a mile of the public road crossing at McCombs station. This made out a prima facie case for the plaintiff, imposing upon defendant the burden of acquitting itself of negligence. Cent. of Ga. Ry. Co. v. Turner, 145 Ala. 441, 40 So. 355. The jury could also reasonably infer from the evidence that the engineer failed to comply with the requirements of section 5473 of the Code of 1907, as to ringing the bell and blowing the whistle. Indeed, the evidence leaves it uncertain that the engineer was testifying to the same occurrence as the plaintiff, as this evidence is diametrically opposed both as to time of the injury and the direction in which the train was running at the time the cow was injured. It was a jury case, and the affirmative charge was properly refused.
The judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.