Opinion
6 Div. 699.
June 8, 1920.
Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.
Action by Walter McDougal against the! Louisville Nashville Railroad Company for the negligent killing of an ox. From a judgment for defendant, plaintiff appeals. Affirmed.
Pinkney Scott, of Bessemer, for appellant.
The case of Vaughn v. State, ante, p. 35, 81 So. 417, is without application, for neither the trial court nor any other court can judicially know that as a matter of fact the Louisville Nashville Railroad Company did not operate the train over this railroad that killed plaintiff's animal.
Huey Welch, of Bessemer, for appellee.
The court judicially knows that at the time of the killing of the animal the railroads were under federal control and being operated by the servants and agents of the Director General. 119 Miss. 627, 81 So. 417; 74 So. 397; (D.C.) 258 Fed. 945; 169 Fed. 601, 95 C.C.A. 99; 188 U.S. 400, 23 Sup. Ct. 468, 47 L.Ed. 519; 234 U.S. 627, 34 Sup. Ct. 938, 58 L.Ed. 1506; 128 Ala. 550, 29 So. 585.
The complaint in this case claims damages, alleging the negligent operation of defendant's engine and cars over its line of track between Bessemer and Johns, Ala., on June 3, 1919, at a time when this court judicially knows that defendant's railroad was being operated exclusively by the United States government. Vaughn v. State, 81 So. 417. And all agencies being used in the operation of locomotives and cars on said railroad were under the control of the federal government. The facts alleged in the complaint, taken in connection with facts judicially known to this court, would preclude a recovery by the plaintiff against this defendant. It follows that the rulings of the court on demurrer are moot questions, without injury to plaintiff. Ex parte McMillan, 15 Ala. App. 571, 74 So. 396.
Ante, p. 35.
General Order No. 50 — A gave authority to substitute the Director General of Railroads in pending suits, and does not apply to suits brought on claims arising after the railroads had been taken over by the government and were being exclusively operated by it. Such a substitution in this case would be an entire change of parties defendant and was properly disallowed.
We find no reversible error in the record, and the judgment is affirmed.
Affirmed.