The Montgomery advertiser., 1905-10-11

ALABAMA GREAT SOUTHERN RAIL- ROAD COMPANY vs. FULTON. Action against railroad company to re- cover damages for personal injury Appeal from Bessemer City
 Court.
 i. Neglieence of railroad company in operating train near crossing; when traveller along road way may recover damages-Where one Is travelling along
 a road. driving an animal attached to
 the vehicle in which he Is riding, and
 the road, though not public road
 crosses a railroad track, the employees
 of the railroad company in charge of train running along the railroad near
 such crossing are under no duty to
 keep a lookout for said traveller; but
 their duties in respect to him arise only after they become aware of his presence
 and peril; and if. after becoming aware
 that the animal the traveller Is driving
 has become frightened by the engine, or the noises made by it. the trainmen
 fail to use every means at hand to
 which a man of ordinary care and pru- dence would have recourse in order to
 alIay the fright of the animal. and in
 jury results from such failure to said
 traveller, the railroad company would
 be liable, in damages, for any personal
 injury sustained by him.
 g. Same; same.-In such case. the
 railroad company would he liable If the
 trainmen. knowing of the proximity of
 the traveller with a vehicle, and animal
 attached thereto, to the. track, un-
 necessarily caused the engine to make
 unusual noises calculated to frighten
 said animal. thereby causing the
 traveller to be injured: and this Is true, though the animal gave no indication of fright.
 3. Action against a railroad conn pany for negligence; suff1ciency of com plaint.--Tn an action against a railroad company to recover damages for per- sonaI injury alleged to have been caus- ed by the negligence of the defendants trainmen, a count of the complaint which seeks alternately a recovery for the failure of defendants trainmen to know of plaintiffs presence and his peril, is bad, and subject to demurrer. 4. Action against a railroad company for neRligence: when question for the f jury.-When an action against a rail-
 road company, brought by one injured while travelling along a highway cross- ed by the railroad track of defendant, to recover damages for personal injury sustained hy reason of the mule which the plaintiff was driving becoming frightened at an engine and train of cars operated along said track. where there Is evidence tending to show that
 
 covering the fright of the mule, and 1 from which the jury might have found that the injury resulted from such neg | ligence; and there was also evidence tending to show that the trainmen, after becoming aware of the presence of the mule, and before there was any I indication of fright in the mule, caused | the engine to emit unusual and unnec- essary noises calculated to frighten a mule of ordinary gentleness, and which | frightened the plaintiff's mule and caused the injury complained of: it is proper for the court to refuse to give | the general affirmative charge request
 ed by the defendant, since the question of defendants negligence is one to be | determined by the jury.
 5. Action for negligence; question of contributory negligence.-In an &C., | tion against a railroad company to re- cover damages for personal injury, l where the defendant sets up the de- fense of contributory negligence, the jury, in passing upon the question of contributory negligence, should meas
 ure the plaintiffs conduct by compari
 son with what the jury would find the conduct of men of ordinary prudence
 to have been under similar circum- stances.
 Reversed and remanded