
    Alabama Great Southern Railroad Co. v. Blevins.
    1. The plaintiff suing as executor of a deceased person having, without objection, testified that he was such executor, no further proof of this fact was necessary.
    2. Dismissal of a case for want of evidence to support it is virtually a judgment of nonsuit, and is no bar to a subsequent action for the same cause.
    3. The plaintiff’s right to recover depending entirely upon the presumption of negligence raised by law against the railway company, and the defendant having, by the uncontradicted testimony of the engineer, fully overcome this presumption; andit appearing that the fireman, who was not introduced as a witness, could not have thrown any additional light on the case because he was at the time occupied in supplying the engine with fuel, the verdict rendered in the magistrate’s court was contrary to law, and the court erred in overruling the certiorari.
    
    July 10, 1893.
   Judgment reversed.

Action for damages. Before Judge Milner. Dade superior court. September term, 1893.

Blevins, as executor of Cross, brought suit against the railroad company for damages to a cow. The magistrate gave judgment in favor of plaintiff. Defendant appealed to a jury, who returned a verdict for plaintiff. It appeared that to a previous term of the magistrate’s court plaintiff had sued defendant for the same cause of action, and that the case was dismissed on motion for want of evidence to sustain the pleadings. The second suit was beguu after the judgment of dismissal was rendered. From the verdict in the second suit defendant took the cause by certiorari to the superior court, alleging that the verdict was contrary to evidence and to law; that plaintiff failed to show legally that he was the executor of the estate of Cross; and that the former judgment should have put an end to this suit. The certiorari was overruled, and defendant excepted.

Blevins testified that he was the executor of the estate of Cross, and had a cow knocked off the track of defendant by its engine on September 16, 1891, which cow was thereby damaged $50. Another witness testified, that the cow was knocked off the track of defendant, and was sold to the witness by the foreman of the section for $5. Witness could have seen a cow three or four hundred yards on the track, and the train was going up grade when the cow was knocked off; he heard the whistle blow several times at the cow; he saw her after she was struck; and she was badly damaged. For defendant, the engineer of the train testified, that the cow was about twenty feet from the track when he first saw her, and, when he got about one hundred feet from her, started to cross the track, and the bumper hit her as she crossed and knocked her down; he did all that was possible to prevent the accident, applied the brakes, but was too close to her to stop, and thought he blew the whistle and sounded the stock alarm; the train did not come to a full stop; the accident could not have been prevented; the engine was about one hundred and fifty yards from the. cow when he first saw her, and she was then grazing and was about one hundred feet from the engine when she attempted to cross; the engine was in perfect condition, the engine and train being equipped with Westinghouse brakes, the best made, and the same were in perfect condition; his duties were a general supervision of the engine and to keep a lookout ahead for obstructions, which duties he was performing at the time of the accident, being at the proper place, looking out for obstructions and running the engine; the fireman’s duties were to keep steam and do such things as were required by the engineer, and the fireman was putting in coal at the time of the accident; the cow was only crippled, not killed; the train was made up as usual so far as he knew; the schedule was about-twenty-five miles per hour, and he thought the train was on time; it was running up a slight grade and making about twenty-five miles per hour; he did not remember how many times he blew the whistle, but thought he sounded it; at. the speed he was running the train could not have been stopped in less than three hundred feet on the grade; when he first saw the cow she was not on the track and he did not reverse his engine, but as soon as she started towards the track the brakes were applied, speed checked as much as possible, and every measure taken to prevent the accident.

W. IT. & J. P. Jacoway and R. J. & J. McCamy, for plaintiff in error. McCutchen & Shumate, contra..  