Western Ry. of Ala. v. Mitchell

— The third count of the complaint is good.—E. T., Va. & Ga. R. R. Co. v. Carloss, 77 Ala. 443. It is not open to the criticism that it assumes the running of any train of cars or locomotives upon the defendant’s track would he negligence. Fairly construed, the meaning is the same as if it had.alleged that the plaintiff’s mirles were killed by reason of the negligence of the defendant in and about the running of its train, etc.

The fourth count -was sufficiently specific as to the place of the accident, and was otherwise good. The Car-loss Case, supra, relied on by appellant to support the proposition that the averment- in the fourth count of the locus is not definite- enough, was decided under a. statute which has been repealed by its omission from the Code.

The demurrer to the-fifth count was properly overruled. The count is as full and specific as many that have been sustained by this court.—Central of Co. Ry. Co. v. Edmondson, 135 Ala. 338, 33 South. 480, and cases there cited. The count avers that the negligence of the defendant in the manner specified caused the death of the mules, and thus shows the causal connection between the negligence and the injury.

The specific pleas, to which demurrers were sustained, alleged only such facts as were available under the general issue, and hence the defendant suffered no injury-in any event from the rulings on demurrers.—L. & N. R. R. Co. v. Hall, 131 Ala. 161, 32 South. 603. Furthermore, the defendant actually introduced under the general issue the evidence that would have been admissible and that it -would doubtless have offered under the special pleas.

*44The general rule is settled in this state that it is per se negligence as a matter of law for a railroad company to rnn its trains in the nighttime with a headlight not having sufficient capacity to cast light upon the track so that the engineer may perceive obstructions for the distance within which the train can be stopped. Inasmuch as animals may run at large, and therefore may at any time appear in dangerous proximity to the track, those operating trains must be on the lookout so as to discover animals in positions of peril, and must be likewise diligent to avert injury to them when their peril becomes apparent. When a bank or wall of fog or strip of smoke appears ahead of the train and across the track, hiding from.view objects that may be beyond it on or near the track, common prudence should suggest to. the engineer that he do not plunge heedlessly on, with undiminished speed, reckless, of consequences, but that he secure control of the train, and proceed with caution and care commensurate with the danger, until the usual conditions are restored. Whether any particular rate of speed is negligent must depend upon the conditions and circumstances under which the train is operated. “When anything in the surrounding conditions suggests care in the operation of a railroad train to avoid perils and dangers to others, the higher the duty increases to observe it.” —B. M. R. R. Co. v. Harris, 98 Ala. 334, 13 South. 377. It was admitted by the engineer that he continued to drive his train forward at the rate of forty or fifty miles an hour, with no effort to check the speed, as if no unusual condition existed, although he saw the fog bank at a considerable distance before reaching it, and must have known that if nothing was done to diminish the' speed it would be impossible to avert injury to stock, should any be on or near the track beyond the obstruction. This was not due care. It was gross negligence.—A. G. S. R. R. Co. v. Jones, 71 Ala. 487; Central R. R. & Bank Co. v. Ingram, 98 Ala. 395, 12 South. 801; Ala. Midland Ry. Co. v. McGill, 121 Ala. 230, 25 South. 731, 77 Am. St. Rep. 52.

The portion of the court’s general charge to which an exception was reserved was in harmony with these views. The defendant was not entitled to the general *45charge, and all the other charges requested by . the defendant were properly refused, because they ignored the duty of the engineer to check the speed of the train, or asserted that it was sufficient to excuse the defendant if the engineer could not have seen the animals by keeping a vigileiit lookout until he was so near them that it was impossible to prevent killing them, without reference to his precedent negligence in approaching and entering the fog bank-at the speed and under the circumstances shown.

The verdict was neither unsupported by, nor was it against the weight of the evidence, and hence no error was committed in denying the motion for a new trial.

There is no error in the record.

Affirmed.