
    (81 South. 852)
    NORTHERN ALABAMA RY. CO. v. GANTT.
    (8 Div. 602.)
    (Court of Appeals of Alabama.
    April 8, 1919.)
    1. Railroads <&wkey;419(2) — Injury to Animals on Tracks — Dogs—Duty oe Engineers.
    A locomotive engineer, seeing a dog on the track, is entitled to act on the presumption that it will get out of the way, provided there is nothing in circumstances to indicate that the dog is helpless or indifferent to its surroundings.
    2. Railroads &wkey;>446(10) — Killing oe Dog— Failure to Warn — Question oe Fact.
    Where a dog was seen by defendant’s engineer trotting along the middle of defendant’s tracks, apparently indifferent to its surroundings and far enough ahead of the engine to have avoided death, had it been warned, and the engineer did not sound an alarm or slacken speed, the question of negligence was one of fact.
    Appeal from Circuit Court, Franklin County ; C. P. Almon, Judge. f
    
    Action by Thomas Gantt against the Northern Alabama Railway Company, for damages for the killing of-a'dog, tried by the court without a jury. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. H. Bankhead, Jr., and M. E. Nettles, both of Jasper, for appellant.
    Travis Williams, of Russellville, for appellee.
   SAMFORD, J.

The rule governing eases of this kind is declared to be:

“A motorman [or engineer] who sees a dog on or dangerously near the track ahead is entitled to act, or to refrain from acting, upon the presumption that it will get out of the way in time to avoid danger, or that it will not move into danger, provided there is nothing in the circumstances to indicate to a reasonably prudent operative that the dog is helpless to extricate itself from danger, or that it is indifferent to its surroundings.” Ala. City G. & A. Ry. Co. Lumpkin, 195 Ala. 290-294, 70 South. 162, 164, and authorities thefe cited.

In the instant case, according to the testimony of plaintiff’s witness, the dog was trotting along in the middle of defendant’s track, ahead of the engine, apparently indifferent to its surroundings, and far enough ahead of the engine to have avoided death, if it had been warned; of the danger. The engineer did not sound any alarm or slacken speed. The engineer admits seeing the dog, but claims to have blown the whistle and slowed the speed of the train. The question of negligence was one of fact for the court, and we are not prepared to say from this record that its finding was clearly error.

.We find no error in the record, and the judgment is affirmed.

Affirmed.  