Summary
In Armstrong v. Louisville and Nashville Railroad Company, 265 Ala. 113, 90 So.2d 103, 104, the court said: "Counsel in briefs mention the enactment of the statute prohibiting open range counties.
Summary of this case from Louisville Nashville Railroad Co. v. HarperOpinion
6 Div. 797.
June 30, 1956. Rehearing Denied September 13, 1956.
Appeal from the Circuit Court, Blount County, Frank B. Embry, J.
Nash NeSmith, Oneonta, and Chas. H. Eyster, Decatur, for petitioner.
The question whether defendant railroad acquitted itself of negligence, as provided by Code, Title 48, § 73, is one for the jury. Ledbetter v. St. Louis S. F. R. Co., 184 Ala. 457, 63 So. 987; Atlantic Coast Line R. Co. v. McEachern, 19 Ala. App. 40, 94 So. 784; L. N. R. Co. v. Holmes, 32 Ala. App. 551, 27 So.2d 878. Whether operation of train at such speed that it could not be stopped within a distance that an obstruction could be seen upon the tracks was negligence is a question for the jury. Louisville N. R. Co. v. King, 37 Ala. App. 182, 67 So.2d 49; Central of Georgia R. Co. v. Faust, 17 Ala. App. 96, 82 So. 36; Alabama Power Co. v. Brown, 205 Ala. 167, 87 So. 608. Open ranges for cattle no longer exist in Alabama. The cow was on the tracks at a place where she had no right to be and where it was unlawful for her to be. There was therefore no duty on the engineer to run his train at any particular rate of speed. Code 1940, Tit. 3, §§ 93(1), 95; 74 C.J.S., Railroads § 596, p. 1193. The headlight rule, as applied to operation of trains in the country on curves in nighttime has now been changed. Louisville N. R. Co. v. Moseley, 263 Ala. 103, 81 So.2d 321.
Johnson Randall, Oneonta, opposed.
Railroad injuring stock by running train in night time at such speed that it could not be stopped within distance in which stock could be seen on track by aid of headlight was guilty of negligence and owner was entitled to recover. Louisville N. R. Co. v. King, 37 Ala. App. 182, 67 So.2d 49; Alabama G. S. R. Co. v. Jones, 71 Ala. 487; Central Railroad Banking Co. of Georgia v. Ingram, 98 Ala. 395, 12 So. 801; Louisville N. R. Co. v. Davis, 103 Ala. 661, 16 So. 10; Alabama Midland Ry. Co. v. McGill, 121 Ala. 230, 25 So. 731; Alabama Great Southern R. Co. v. Bishop, 259 Ala. 629, 68 So.2d 530.
On the issue of negligent operation of the train the jury in the trial in the circuit court found for the defendant. The Court of Appeals reversed this finding, holding that the plaintiff was entitled to the affirmative charge. We interpret the opinion of the Court of Appeals as holding that the evidence was not sufficient to overcome the presumption arising under § 173, Title 48, Code of 1940, the injury to the cow being shown. We do not agree.
It is well to note that the train, the mechanical equipment of which was in good working order, was being operated by an experienced engineer, who was exercising care in keeping a lookout and who did everything reasonably possible to stop the train after seeing the cow. Also the train was moving at a lawful speed. Cannon v. Louisville N. R. Co., 252 Ala. 571, 42 So.2d 340.
Since the Court of Appeals rendered its opinion, this Court held in Louisville Nashville R. Co. v. Moseley, 263 Ala. 103, 81 So.2d 321, that the headlight rule has no application to the operation of trains in the country in the nighttime on curves on which there is no public crossing. Of course the Court of Appeals did not have that decision before it.
In accordance with the change in the law to which we have referred the question of negligence of the railroad in operating its train at the time of the accident was a question for the jury. Counsel in briefs mention the enactment of the statute prohibiting open range counties. § 93(1), Title 3, Code of 1940. The accident in the case at bar happened after the effective date of the foregoing statute abolishing open range counties. Under the ruling of our cases, however, we do not consider that the prohibition of open range counties has any effect in this case and it should not be considered. Prohibition of the open range does not change the duty and burden of proof placed on the railroad under § 173, Title 48, Code of 1940. Alabama Great Southern Railroad v. McAlpine Co., 71 Ala. 545; Southern Railway Co. v. Hoge, 141 Ala. 351, 37 So. 439; Alabama Great Southern Railroad v. Powers, 73 Ala. 244; Louisville N. R. Co. v. Kelsey, 89 Ala. 287, 7 So. 648; South North Alabama Railroad Co. v. Williams, 65 Ala. 74; Alabama Great Southern R. Co. v. Jones, 71 Ala. 487. It results that the case is due to be reversed and remanded to the Court of Appeals.
Reversed and remanded to the Court of Appeals.
All the Justices concur.