The Montgomery advertiser., 1905-01-15
CENTRAL OF GEORGIA RAILWAY V T.ARKTNS

CENTRAL OF GEORGIA RAILWAY V.
 LARKINS.
 Action Against Railroad Company to
 Recover Damages for Killing Stock
 Appeal from the City Court of
 Montgomery.
 1. Pleading and practice; when er- TOT in sustaining demurrer to plea without injury.-Where the facts al- legged in a special plea can be intro- duced in evidence under the plea of the general issue. and 1t affirmatively appears that the defendant under plea of the general Issue had the benefit of the same defense which it sought to interpose by the special plea, the sus- taining of a demurrer to such special plea. if erroneous, is error without in- jury.
 2. Action against railroad company for killing stock general affirmative charge.-In an action against a rail- road company to recover damages for the killing of two mules, where there Is evidence from which the jury can infer that the employees of the defend- ant might have discovered the mules in time to have prevented the killing of them. by employing the proper means therefor, and that said employees were negligent in not .averting the ac- cident, the general affirmative charge requested by the defendant is properly refused.
 3. Same: charge of court to jury In an action against a railroad com pany to recover damages for killing two mules, it was snown that the mules were killed by a freight train of the defendant on It's road in the day time, and where the mules were killed. the track was straight for sew eral miles in the direction from which the train was approaching. but there was an upgrade to a point 200 yards from where the mules were first struck by the train; that at the point where the mules were struck, the track rest ed on an embankment five or six feet high. The. evidence For the plaintiff tended to show that the sides of the embankment at such point were so steep that 1t would be very difficult for a mule to go up the embankment. There was testimony tending to show that the mules could not have been seen by the engineer until the engine reached the crest of the grade The engineer in control of the engine tes- tified that when he first saw the mules. they were standing immediately by the side of the track on the embank- ment, and that when the engine got within 100 or 125 yards of the mules. they suddenly ran up the embankment on to the track; that he immediately applied the air-brakes and did all that prudent and careful engineer could do to stop the train, that he was on the lookout in the direction in which the engine was going, and that 1t was impossible. by all the means known to skillfuI engineers to have stopped said train after he first saw the mules before they were struck. witness for the plaintiff testified that when the train was a quarter of a mile away from the mules, they were on the track. and that the engineer gave but one blast of the whistle. and that the train never s1acked its speed until af- ter the mules were killed. Held: A charge is erroneous and properly re- fused which tnstructs the jury that. If the jury believe from the evidence that the engineer of the defendants g train was on the lookout in the direc- ton in which the train was going. and that he could only see the mules g. distance of 200 yards. then they must find for the defendant"
 4. Same; same-In such a case, Q charge is erroneous and properly re- fused. which instructs the jury that. If the jury believe from the evidence that when the mules were discover l by the enginer, and that the engine /