
    Central Railroad & Banking Co. v. Ingram.
    
      Action for Damages for Injupies to Mules.
    
    1. Liability of railroad company for injuries to stock; general charge onevi-denctK — In an action against a railroad company to recover damages for injuries to several mules, which were run over by a freight train before daybreak one frosty morning, as the train was crossing a trestle over a small creek, the defendant is entitled to the general affirmative charge on the evidence, when the engineer of the traiii testifies that he did not see the animals until he wag within ten feet of them, and could not see them sooner because of a dense fog, about one hundred yards wide, which covered the track at that point, extending up and down the creek; there being no evidence in conflict with his testimony, and none which authorized an inference inconsistent with it.
    Appeal from tbe Circuit Court of Bussell.
    Tried before tbe Hon. Jesse M. Carmichael.
    Tbis action was brought by Charles E. Ingram against tbe appellant corporation, to recover damages for injuries to a number of bis mules, fourteen of which were killed, and several others crippled and injured, by one of tbe defendant’s freight trains, on tbe morning of November 28th, 1890. Tbe accident occurred between three and four o’clock in tbe morning, an hour or more before daybreak, at a trestle or short bridge which spanned Dry Creek; and the evidence showed that the night was star-lit, and the morning-frosty. The defendant asked the general affirmative charge on the evidence, and the refusal of this charge is assigned as error.
    Norman & Son, for appellant,
    cited Long v. McLougald, 23 Ala. 413; Belisle v. Clarice, 49 Ala. 98; Hall v. Posey, 79 Ala. 89 ; Ala. Gold L. Ins. Go. v. Mobile L. Ins. Go., 81 Ala. 331; 87 Alá. 309.
    John Y. Smith, contra,
    
    cited Railroad Go. v. Jones, 71 Ala,. 495; Railroad Go. v. Perry, 87 Ala. 392 ; Railroad Co. v. Smith, 90 Ala. 25.
   McQLELLAN, J.

The general affirmative charge was asked by the defendant below and refused. The Only exception reserved goes to that action of the trial court. The correctness of the ruling confessedly depends upon whether any evidence was adduced in conflict with, or which afforded an inference inconsistent with, the testimony of the engineer, that the immediate locality of the casualty was so enveloped in a dense wall of fog as that it was impossible to see plaintiff’s mules until too near them to avoid colliding with and killing them. This fog-wall, he says, arose from the bed of a creek along which was timber, was scarce an hundred feet thick, and extended across the track. This testimony is not, we apprehend, unreasonable in itself; but, if so, the jury would have been free to disregard it, under the charge requested and refused. So, too, with respect to supposed contradictions in other parts of this witness’ testimony; the giving of the, charge asked would not have prevented tbe jury, bad tbey seen proper, from discrediting tbe witness as to tbe existence of fog, and finding for tbe plaintiff, since tbe instruction was tbat tbey should find for defendant only in tbe event tbey believed all tbe evidence. Tbe sole question, we repeat, therefore is, was there any evidence inconsistent with tbe testimony of tbe engineer as to tbe existence of tbe fog at tbe time and place of tbe casualty? Certainly neither tbe fact tbat tbe night was clear and star-lit — tbe accident occurred a little after 3 o’clock A. ffi. — or tbat tbe dawn was fair and bright, is at all inconsistent with tbe theory of tbe existence of a fog-wall at tbat particular point; for it is common knowledge, tbat fogs of this character, arising from water-courses, usually, if indeed not always, occur only during very clear nights. Nor do we conceive tbat tbe testimony of the witness Smith affords any basis for an inference to be drawn by tbe jury tbat tbe engineer was mistaken as to tbe fog. Smith was three-fourths of a mile away. It was night. It does not appear tbat bis attention was at all directed to tbe • point of tbe alleged fog. If it bad been, it is not reasonable to suppose tbat be would at tbat distance, and at tbat time, have detected tbe wall of fog banging over tbe bed of tbe creek, and among tbe trees which lined its banks. It is common knowledge tbat such fogs, “after depositing a heavy dew, lie still in the valleys,” over tbe water and damp ground from which tbey are exhaled; and it would have been singular, under tbe conditions shown by tbe evidence, if there, bad been any traces of fog at tbe place where Smith was. . Tbe evidence does not inform us bow many creeks, swamps and tbe like this train bad passed over on tbat night; but tbe engineer testified be bad passed through a similar fog at Ucbee Creek; and for aught tbat we can know, this was tbe only other point on tbe line traversed by tbe train which afforded tbe same aqueous and atmospheric conditions tbat existed at tbe point of tbe accident. So tbat we are unable to conceive bow tbe fact tbat fog existed elsewhere only at Ucbee Creek, could afford any inference tbat it did not exist at tbe place in question.

Another matter relied on to sustain tbe court’s action is tbe testimony of tbe fireman. This witness testified as to the fog only this: “I can not say there was any fog tbat night.” This could mean no more than tbat tbe witness did not know at tbe time of the trial whether there was a fog at tbe time and place inquired about. How- this ignorance arose, why be is unable to say tbat there was a fog, be does not undertake to inform tbe jury, as we construe bis testimony. It may be tbat bis attention was not on tbe alert, and bence be did not know at tbe time wbetber there was a fog. Or it may be tbat be knew at tbe time tbat there was or tbat there was not snob fog as the engineer deposed to, and has since forgotten what was tbe real fact in that connection. However tbat may be, one thing is certain: be neither affirms or denies the existence of tbe fog, directly or inferentially; and bis evidence can not in any just sense be said to corroborate or contradict tbat of tbe engineer, or to afford any basis for a legitimate inference in line with or inconsistent with tbe latter’s testimony. Manifestly, tbe jury might have given full credence to every fact deposed to by tbe fireman, and full force to every inference deducible from bis evidence, and yet have implicitly believed all tbat was deposed to by tbe engineer in respect of tbe existence of a dense fog at the place of tbe casualty. So far as tbe testimony of tbe fireman is concerned, therefore, tbe general charge requested should have been given.

There is no evidence in this record tbat any of tbe mules were stricken elsewhere than at tbe point which tbe engineer swears was enveloped in tbe fog. No indications of a collision at any other point are deposed to. All tbe animals which were killed outright, were found at tbat place. Several hours afterwards, one of tbe mules which bad been wounded in tbe collision was found on tbe track at another place a short distance from this, in tbe direction from which the train came. Tbat it bad gone to tbat place after tbe train passed, is manifest from tbe fact tbat it was found on tbe track, where it could not have remained and lived while tbe train was passing; and tbat it might have come from tbe place where tbe other mules were killed is demonstrated by tbe fact tbat it was still able to move about and was driven off tbe road. In tbe absence of any evidence of a collision at tbe point where this mule was found, it would be unreasonable to allow any inference under tbe circumstances to be drawn tbat it was stricken at tbat place. This fact, like tbe other circumstances to which we have alluded —and this and those others constitute all tbe evidence relied on to afford an inference inconsistent with tbe evidence of tbe engineer — affords nothing contradictory of, or inconsistent with tbe evidence for tbe defendant, which went to show tbat its employes were without fault in respect of tbe occurrence; and tbe jury should have been instructed, a3 requested, that if they believed all tbe evidence in tbe case they should find for the defendant.

Reversed and remanded.  