Opinion
1 Div. 220.
December 18, 1917.
Appeal from Law and Equity, Court, Mobile County; Saffold Berney, Judge.
Action by Jesse Hudson against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Bestor Young and James E. Duggan, all of Mobile, for appellant. Stevens, McCorvey McLeod and D.B. Goode, all of Mobile, for appellee.
The evidence tended to show that appellee's cow strayed from home about November 11, 1914, and never returned; that a little more than two weeks thereafter appellee found the remains of a carcass of a cow about 15 feet from appellant's track in the city of Mobile, within the yards of the Mobile Ohio Railroad, and in a marsh adjoining said track; that the cow was identified as being the property of the plaintiff by a few spots of red hair on the face and by a rag tied on to one of the stubs of a horn that had been shucked off; that the flesh had all gone from the bones, and that one of the hip bones had been broken. There was evidence of other railroad tracks belonging to another railroad running within 8 feet of defendant's track, and on the other side from the carcass. This was the entire evidence upon the question as to whether the defendant's engine struck the cow at all.
The right of recovery in this case is dependent upon the establishment of causal connection between the injury to the cow and the alleged cause. Southworth, Adm'x, v. Shea, 131 Ala. 421, 30 So. 774, and authorities there cited. This the facts in this case fail to do, nor are they sufficient to support a verdict.
The foregoing is the opinion of the writer, but the majority think the facts are sufficient to submit it to the jury, on the authority of Southern Ry. Co. v. Blankenship, 14 Ala. App. 261, 69 So. 591; Id., 194 Ala. 368, 70 So. 132, and the judgment is affirmed.
Affirmed.