
    Southern Railway Co. v. Hartman.
    
      Killing Animals'.-
    
    (Decided April 15, 1915.
    68 South. 557.)
    1. Railroads; Animals on Track; Burden of Proof. — Under the evidence in this case, which is stated, the tniüden was cast on defendant, under the express provision of section f>47G, Code 1907, to show that the killing of the animal was not negligent.
    2. Same; Affirmative Charge. — Plaintiff’s evidence having made out a prima facie case, iu such sense as to cast the burden on the defendant to acquit itself of negligence, and defendant offering no evidence to discharge this burden, plaintiff was entitled to have a verdict directed for it.
    3. Appeal and Error; I-Ia^'inless Error; Instructions. — Where the plaintiff is entitled to the affirmative charge any error in ruling on instructions requested by the defendant is harmless.
    Appear from Jackson Circuit Court.
    Heard before Hon. W. W. Haralson.
    Action by J. W. Hartman against The Southern Railway Company for damages for killing animals. Judgment for plaintiff and defendant appeals.
    Affirmed.
    Lawrence E. Brown, for appellant.
    The court erred in charging that the burden of proof was on the defendant to show that there was no negligence. — L. & N. R. R. Oo. v. Christian Co., 150 Ala. 390; Same v. Mertz & Co., 149 Ala. 561; B. R, L. & P. Co. v. Landrum, 158 Ala. 192. The operatives in charge of the engine should not be required to keep a lookout inconsistent with their other duties. — Creen v. Bracly, 153 Ala. 386; R. R. Co. v. Campbell, 158 Ala. 438. The killing was an unavoidable accident, and the defendant was entitled to the affirmative charge. — Southern Ry. Co. v. Tdoge, 141 Ala. 351. '
    
      Bouldin & Wimberly,, for appellee.
    Under the express provisions of § 5476, Code 1907, the burden was cast on the defendant to acquit itself of negligence, and the defendant offering no evidence, the plaintiff was entitled to the affirmative charge. — I. G. R. R. Go. v. Bottoms, 1 Ala. App. 302; Southern Ry. Go. v. Parks, 10 Ala. App. 318. Where a plaintiff is entitled to and receives affirmative instructions, any error in ruling on requested instructions of a defendant is harmless.
   PELHAM, P. J.-

-The action is by the appellee (plaintiff) to recover damages of the appellant (defendant) for killing a horse. The facts are without conflict in the evidence, and show that the animal was killed at 7 o’clock in the morning by one of the appellant’s east-bound passenger trains about one quarter of a mile east of a station on the line of appellant’s railroad called Woodville. From Woodville to the point where the horse was struck and killed, the track is straight. The appellant’s right of way is fenced in on both sides of the track where the injury occurred, the fences running parallel to, and on each side of, the track, about 20 feet distant from the track. The horse was on the inside of the inclosed part of the right of way grazing, when the train was approaching Woodville at the rate of about 15 miles an hour, and was on the opposite side from the engineer. As the train came up, the animal “commenced running ahead of it a little piece” along the right of way, and close to' the track for some 25 or 30 yards, when, upon reaching a creek that crossed the right of way at that point, the animal turned and ran upon the track just in front of the engine and was killed. The train did not stop or slacken its speed, and the whistle was not blown. It is not shown that any effort was made to frighten the animal away, or that anything else was done by thb^e in charge of the train.; to prevent the injury, although ft is;made to appear fróml the evidence that the horse fan "alongside of, and within ' less than 20 feet of, the track'for! 25 or 80 :yai*ds jnst in front of the engine, which wáé going- at the rate of only abont 15 miles per hour.

The evidence made out a -:prima-feeie case for the plaintiff, which cast the burden of .proof on the defendant to show that the killing, wasj-not negligent. — Code, § 5476; Ex parte Southern Ry. Co., 181 Ala. 486, 61 South. 881.

We cte> not think the evidence offered by the plaintiff rebutted the presumption of the-defendanffs negligence, andy the defendant having offered- ho evidence to meet thiff presumption and discharge this burden, the plaintiff y?as entitled to the general -charge^requested in writing jin his behalf. See Southern Ry. Co. v. Parks, 10 Ala. App. 318, 65 South. 202.

Even if the court was in error in its rulings on the charges made the basis of the assignments of error, it was without injury, since tlie plaintiff was entitled to the general affirmative charge.—Jones Cotton Co. v. Snead, et al., 169 Ala. 566, 53 South. 988.

Affirmed.  