
    Nashville, Chattanooga & St. Louis Railroad Company v. Hembree.
    
      Action for Damages against Railroad Company, for Killing Stock.
    
    1. Statutory liability of railroad company, for injuries to live-stock; checking speed of train. — The statutory duty imposed on the engineer of a railroad train, to check the speed of his train when approaching a public road crossing (Code, 1876, § 1609), only appiies to such crossings in a curve on a cut, where he can not see at least one-fourth of a mile ahead.
    2. Same; blowing whistle, or ringing bell. — The duty of blowing the whistle, or ringing the bell, on approaching a depot or road-crossing, is imposed for the protection of persons or live-stock at the depot or crossing, and has no reference to stock running at large several hundred yards distant.
    3. Same; using brakes, reversing engine, &c. — While it is the duty of a railroad .engineer to keep a proper lookout, and to use all proper means known to skillful engineers, in order to prevent accidents to live-stock running at large, he is not required to attempt the impossible; and if, having kept a proper lookout, he did not and could not see the animals approaching the track, until it was too late to prevent the injury, he is not required to do anything, and his failure to sound the cattle-alarm, or to attempt to check the train, is not negligence.
    
      4. Same; burden of -proof; defenses to action. — When the plaintiff shows that his horse was killed by a moving train belonging to the defendant railroad company, he makes out a prima facie case, and the onus is then cast on the defendant to show (1) that proper diligence was employed to prevent the injury, or (2) that it was caused by unavoidable accident, and could not have been prevented by proper care and diligence ; and if either of these defenses is established by the evidence, the defendant is entitled to a verdict.
    Appeal from tbe Circuit Court of Jackson.
    Tried before tbe Hon. JOHN B. Tally.
    Tbis action was brought by A. J. Hembree, against tbe appellant corporation, to recover damages for killing a mare, tbe property of plaintiff. Tbe circumstances attending tbe killing, as disclosed by tbe evidence on the trial, are stated in tbe opinion of tbe court. Tbe court charged tbe jury, ex mero motu, as follows: “It is tbe duty of tbe engineer, or other person having control of tbe running of a locomotive, on approaching any public road-crossing, and within a quarter of a mile of such crossing, to blow tbe whistle, or ring tbe bell, and to continue to do so at short intervals until be has passed such crossing, and also to slacken tbe speed of tbe train; and a failure to do so is negligence on tbe part of such engineer; and if tbe jury find from tbe evidence that the-defendant’s engine and cars were approaching a public road-crossing, and that tbe engineer failed ■ to blow ■ tbe whistle (or ring tbe bell) and slacken tbe speed, and that tbe plaintiff’s mare was killed by reason of such failure, tbe defendant would be liable.” “Tbe statute imposes upon tbe engineer, or other person having control of the running of a locomotive, when approaching any public road-crossing, and within one-fourth of a mile of such crossing, to slacken tbe speed of tbe train, and to approach and pass such crossing at such speed as to prevent accidents in tbe event of an obstruction, and makes it negligence to fail so to slacken the speed of tbe train; and if the jury find from tbe evidence that, at tbe place where tbe mare was killed, tbe defendant’s train was approaching a public road-crossing, and was within a quarter of a mile of such crossing, and that tbe speed of tbe train was not slackened, so as to prevent acidents in tbe event of an obstruction, and that tbe mare was killed because of such failure to slacken tbe speed of tbe train, then tbe defendant would be liable.”
    Tbe court also gave tbe following charges, asked in writing, by tbe plaintiff: (1.) “If tbe jury are reasonably satisfied that plaintiff’s mare was killed by defendant’s train, at tbe time alleged, then, unless defendant has reasonably satisfied them that its agents or servants in charge of the train did all in their power which they could reasonably do to avoid the killing, they must find for the plaintiff.” (2.) “If the jury are reasonably satisfied that the defendant, by its agents or servants, was guilty of negligence in killing the mare, then they must find for the plaintiff.”
    The defendant excepted to each of these charges as given, and requested the court to instruct the jury, if they believed the evidence, that they must find for the defendant. The court refused this charge, and the defendant excepted.
    The charges given, and the refusal of the charge asked, are now assigned as error.
    Humes, Walked, Sheeeey & Goedon, for appellant,
    cited E. T., Va. & Oa. Railroad Go. v. Dea,ver, 79 Ala. 216; Railroad Co. v. Bayliss, 74 Ala. 150; M. & G. Railroad Go. v. Caldwell, 83 Ala. 196; 2 Wood’s Bailway Law, 1327.
    Bbown & Kibe, contra.
    
   STONE, O. J. —

The present action was brought for the recovery of damages, for the alleged negligent killing of a mare, by appellant’s train. The testimony is without conflict on the following propositions: The killing took place in an open field, the ground being level, and neither curve nor cut in that part of the road. The train was approaching, and was within 175 or 200 yards of a flag-station, at which it made no stop, except when signalled, and it was not signalled on that occasion. There was a public road crossing ahead of the train, and within three or four hundred yards of the scene of the collision; and the train was running at the rate of twenty to thirty miles an hour, and neither stopped, nor was checking the speed of its train, as it approached the station.

Under the undisputed facts in this case, the Circuit Court erred in instructing the jury, that it was the duty of the railroads to check the speed of their trains when approaching a public crossing. That duty is simply statutory, and only applies to road-crossings in “a curve on a cut, where the engineer cannot see at least one-fourth of a mile ahead.” Code of 1876, § 1699; E. T., Va. & Ga. R. R. Co. v. Deaver, 79 Ala. 216; Western Railway v. Sistrunk, at present term, ante, p. 352.

Tbe duty to blow tbe whistle, or ring tbe bell, when approaching a depot, public crossing, etc., is intended for tbe safety of persons, stock, etc., who may be at tbe depot, or who may chance to be crossing tbe track, as tbe case may be. It has no reference whatever to stock running at large, and not injured at the crossing. Proximity to tbe depot or crossing should exert no influence in tbe decision of a case like tbe present one.

Tbe first charge given at tbe instance of plaintiff is erroneous. We have frequently said, the impossible need not be attempted. — E. T., Va. & Ga. R. R. Co. v. Deaver, 79 Ala. 216; Ala. Gr. So. R. R. Co. v. McAlpine, 80 Ala. 73; M. & G. R. R. Co. v. Caldwell, 83 Ala. 196. If the engineer was competent, and was keeping a proper lookout, and did not and could not see tbe approaching horses, until it was too late to give tbe cattle-alarm, or check tbe train in time to save the mare, tbe law did -not require him to do any thing. Engineers are not required to do all in their power, nor to do anything, when it is manifest that nothing they can do, can possibly prevent the injury. The charge would have been correct, if it had contained this additional clause: “Unless the jury are reasonably convinced that there was no fault in not sooner discovering the mare, and that when discovered, no amount of diligence could have prevented the collision.”

Charge two, given at the instance of plaintiff, is incorrect. Only such negligence as causes or contributes to the injury, is actionable. — M. & G. R. R. Co. v. Caldwell, 83 Ala. 196.

When the plaintiff showed that the mare was killed by defendant’s moving train, if there had been no other proof, he was entitled to recover. In other words, the duty or burden was then cast on the railroad company of showing that it employed proper diligence to prevent the injury complained of, or that without fault or inattention on its part it failed to discover the peril until it became so imminent that no skill or diligence could avert the danger. Either of these is a perfect defense to an action brought for the injury. In the absence of such defense, fairly proved, it is the sworn duty of the jury to find for the plaintiff. But, when such exculpatory proof is made, and testified to in such manner as to command respect and confidence, it is equally the sworn duty of the jury to give to such testimony fair and unprejudiced consideration, If it reasonably convinces their judgments of its truth, they cannot innocently disregard it. — Ala. Gr. So. R. R. Co. v. McAlpine, 75 Ala. 113.

Railroads are prized for the rapidity with which they transport persons and things. Speed is, possibly, their highest excellence. Much legislation has been enacted for the regulation of this relatively new species of common carrier, but, with the exception of specified places, no restraint has been imposed on their rate of speed. This has been left to their own arbitrament. Hence it can not be affirmed that, outside of prohibited places, there is any restriction in the velocity of its movements. Still, locomotives, with the trains they draw, are “powerful for mischief, as well as for good.” For this reason we have held, “that only very careful and prudent men should be placed in charge of such vehicles of transportation, and they should employ their care and prudence actively, as such men watch over their own important interests and enterprises, of similar magnitude and delicacy.” — Grey v. Mobile Trade Co., 55 Ala. 387; Tanner v. L. & N. R. R. Co., 60 Ala. 621; Tyson v. S. & N. R. R. Co., 61 Ala. 554. And the appointees must be skilled, as well as prudent and diligent.

On the other hand, if the officer in control of the train is skilled in his profession, is watchful, and a dumb animal comes on the track in front of, and in such proximity to the train, as that the latter can not be stopped in time to save the animal, then the engineer need do nothing; for he need not attempt the impossible. In such case, the railroad company is not liable, unless with proper watchfulness, considered in connection with his other duties, the engineer could have discovered the approaching animal in time to frighten it away with the cattle-alarm, or stop or check the train, so as to prevent the collision. It is not every injury a train may inflict that fastens a liability on the railroad company. If a law were so to declare, it would be unconstitutional. — Zeigler v. S. & N. R. R. Co., 58 Ala. 594. And juries, under their oaths, can not establish a rule for their government, and act on it, which, if declared by the legislature, would be adjudged unconstitutonal. The true and only rule, sanctioned alike by law and by conscience, is to hold the railroad company liable, whenever the injury is the result of negligence, or want of skill in its officials, under the rules laid down above. This is right in itself, and stands on the same footing as any injury suffered through the unskillfulness or negligence of another, save in tbe single matter of tbe burden of proof. But, when tbe injury is not tbe result of negligence or unskillfulness, but, under tbe rules above, is unavoidable, tlien tbe railroad company is not liable; and to bold it so, is a gross impropriety, and a great wrong. — Ala. Gr. So. R. R. Co. v. McAlpine, 75 Ala. 113.

There is no substantial conflict in tbe evidence, tending to prove the circumstances under wbicb tbe mare was killed. If believed, tbe railroad company was not liable. Tbe general charge asked by defendant ought to have been given. E. T., Va. & Ga. R. R. Co. v. Bayliss, 74 Ala. 150.

Eeversed and remanded.  