Opinion
8 Div. 499.
April 5, 1927.
Appeal from Law and Equity Court, Franklin County; B. H. Sargent, Judge.
Action for damages for the killing of a cow by Nute Massey against the Illinois Central Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.
Williams Chenault, of Russellville, for appellant.
The cow was killed 500 feet from the station. It was the duty of the engineer continuously to blow his whistle from a point one-fourth of a mile from the station. Code 1923, § 9952; Ill. Cent. v. Martin, 213 Ala. 617, 105 So. 806; R. R. Co. v. Dumas, 209 Ala. 324, 96 So. 243. The burden to show freedom from negligence was upon defendant. Code 1923, § 9953.
Key Key, of Russellville, for appellee.
The defendant acquitted itself of negligence. N.C. St. L. v. Hembree, 85 Ala. 481, 5 So. 173. The railroad is not required to show a compliance with the statute (section 9952) if the injury did not occur at a station or crossing. Lewis v. Southern R. Co., 143 Ala. 133, 38 So. 1023; Southern R. Co. v. Smith, 163 Ala. 174, 50 So. 390. The findings of the trial judge on disputed facts should not be disturbed. Halle v. Brooks, 209 Ala. 486, 96 So. 341; Grant v. Henderson, 21 Ala. App. 285, 107 So. 724; Craven v. Phillips, 214 Ala. 430, 108 So. 243.
Appellant had a cow killed by one of appellee's trains. His suit for the recovery of her value was tried before the court without a jury.
The law governing such cases is well understood.
We cannot agree with counsel for appellant that this court knows judicially that a point 450 or 500 or 600 feet from "the station at Vida, Ala.," is within the limits of an incorporated town or city. We know that the town of Vida is incorporated, but we do not know whether the point mentioned is within its limits or not.
With the above as a preface, we are constrained to hold, and do hold, that, as the case was tried before the court without a jury, we are not persuaded that its findings should be disturbed.
Affirmed.