
    Mobile & Birmingham Railway Company v. Kimbrough.
    
      Action against Railroad Company for Killing Stock.
    
    1. Obstructions on railroad track; duty of engineer to look-out for; charge ignoring this duty.— It is the duty of an engineer, in charge of a moving train of cars, to maintain a lookout, as continuously as his other duties will permit, for obstructions on the track; and when, in an action against a railroad company for the killing of a mare by a moving train, the evidence is in conflict upon the question as to whether such lookout was maintained, a charge, stating the duty owing by the defendant in the operation of its trains to the owners of stock,is faulty, in ignoring the inquiry as to the engineer’s observance of the duty to maintain a proper lookout.
    
      Appeal from tbe Circuit Court of Wilcox.
    Tried before tbe Hon. JOHN Moose.
    Tbis was an action brought by tbe appellee, William A. Kimbrough, against tbe appellant, The Mobile & Birmingham Railway Company, to recover damages for tbe alleged negligent killing of a mare, tbe property of tbe plaintiff.
    There was no dispute as to the fact that tbe mare was killed by one of tbe defendant’s engines. Tbe testimony of tbe engineer, a witness for tbe defendant, tended to show that when he first saw tbe mare she was standing about twenty feet from tbe track and about one hundred yards from the engine; that she started to run, and jumped on the track, ran up the track possibly fifty feet, fell into a cattle-guard, and was struck by tbe engine and Killed; that when the animal came upon tbe track, se.eing that it was impossible to stop tbe train before striking it, be put on all steam possible, so as to knock tbe animal out of the cattle-guard, and thereby prevent a derailment of tbe train.
    There was evidence offered by tbe plaintiff tending to show that when tbe cattle alarm was sounded tbe mare was on tbe track about one hundred yards ahead of tbe engine and about a quarter of a mile from tbe cattle-guard, and that she ran that distance along tbe track in front of tbe engine before she reached tbe cattle-guard, where she was killed.
    To tbe refusal of tbe court 'to give each of tbe following-charges tbe defendant excepted: (1.) “Tbe duty of tbe railroad company is to adopt tbe best precautions against dangers, which are in use, to employ good and safe machinery and appliances such as are most in use and approved by those skillful and experienced in tbe operation of trains and in tbe management of railroads, and to ojjerate said machinery with a due regard to tbe safety of tbe passengers, and when they have done tbis much, their duty to tbe owners of stock is, in tbis particular respect, fulfilled.” (2.) “If tbe jury believe from tbe evidence that tbe engine and train of cars were furnished with all tbe proper and modern appliances in use on well conducted railroads, and were in charge of and managed by skillful and competent servants of the company, and that the engineer, in tbe exercise of tbe reasonable judgment of a prudent and experienced engineer, believed that it was impossible toj_avoid killing tbe mare of tbe plaintiff in tbis case, no matter what precaution be took to prevent tbe accident, and if the' jury further believe from the evidence that tbe lives of the passengers and tbe crew would be less endangered by striking tlie mare at a liigli than a low rate of speed, tben it would be the duty of the engineer to increase the speed of the train, and the company would not be liable for damages in such case.”
    E. N. Jones, for appellant.
   STONE, C. J.

It is possible for a case to arise in which, without fault on the part of those having charge of a railroad train, it is impossible to stop the train in time to save stock found on the track. In such case it is unnecessary for the engineer to attempt to stop his train. And if in such conditions the safety of the train and of the passengers will be promoted by putting on additional steam and thus accelerating the motion, then it is the privilege, the duty of the engineer to give his train additional speed.- — E. T., Va. & Ga. R. R. Co. v. Deaver, 79 Ala. 216; Ala. Gr. So. R. R. Co. v. McAlpine, 80 Ala. 73.

There is, however, another principle to be kept steadily in view when considering the one just mentioned. The engineer must maintain a lookout, as continuously as his other duties will permit, for obstructions on the track ahead, or in such dangerous proximity as to be likely to get upon it. A failure to maintain such lookout is itself an act of negligence, if injury result from it. The liability does not necessarily commence with the first discovery of the obstruction. It dates from the time it could have been discovered through the maintenance of a proper lookout.- — M. & G. R. R. Co. v. Caldwell, 83 Ala. 196; Western Railway Co. v. Lazarus, 88 Ala. 453; E. T., Va. & Ga. R. R. Co. v. Baker, 94 Ala. 632.

The testimony in this record is not so entirely free from conflict as that it can be assumed the engineer was observing a proper lookout. That was a question for the jury to pass on. Each of the charges asked and refused is faulty, in that each ignores this necessary inquiry of fact, in stating the hypothesis on which the defendant claimed a verdict in its favor.

Affirmed.  