ing train, there is always some danger that it will remain on or come on the track and be injured; and to require trains to be stopped whenever such danger exists would unnecessarily and unreasonably interfere with railroad transportation, and that speed and regularity in the running of trains which the interest of the public and the safety of persons and property being transported by rail require. It is the duty of those operating trains to look first to the safety of the train, and to this end they should watch the track before them as constantly as is consistent with the performance of other duties connected with the running of the train, and they should also look out for stock so near the track that it will probably run on to it and thereby endanger the train, and when stock is injured the inquiry should be, not whether all possible effort was used to prevent such injury, but whether, in view of all the facts and circumstances, those in charge of the train did that which men of ordinary prudence would have done under the circumstances, having in view the safety of the train, speed and regularity in its running, and the safety of stock."

III. Effect of statute.

The following cases in Alabama and Tennessee were decided at a time when there were in effect statutes requiring, upon the discovery of animals upon the track, the application of the brakes, and the use of all means to stop the train; but such cases do not seem to arrive at any different result than if tried under the common law.

Thus, in Chattanooga Southern R. Co. v. Daniel (1898) 122 Ala. 362, 25 So. 197, the court said: "The statute imposes no duty or requirement upon a railroad company in the operation and running of its trains, as to stock when seen in proximity to the railroad track. By the express terms of the statute the duties of applying the brakes and reversing the engine are exacted and required when the obstruction is perceived upon the track. But independently of the statute, there are duties and obligations imposed under the common law. Among such duties is

that of ringing the bell or blowing the whistle to frighten away stock when seen, or by due diligence could have been seen, in close proximity to the track, under circumstances indicating a disposition of going upon the track, and, if necessary to prevent injury to the stock, the further duty of checking the speed or stopping the train. South & North Ala. R. Co. v. Jones (1876) 56 Ala. 507; East Tennessee, V. & G. R. Co. v. Bayliss (1884) 77 Ala. 429, 54 Am. Rep. 69; Kansas City M. & B. R. Co. v. Watson (1890) 91 Ala. 483, 8 So. 793. In all of these cases, however, it must be observed that the mere fact of close proximity alone of the animal is not sufficient to exact a performance of these duties by the railroad company or its agents, but such close proximity must be attended with circumstances or conditions indicating danger."

And a charge stating, in effect, that the presence of animals in dangerous proximity to a railroad track would call for the same exercise of diligence as if they were actually on the track was held in Western R. Co. v. Lazarus (1889) 88 Ala. 453, 6 So. 877, to be an incorrect statement of the law, in view of the statute, the court saying: "We may suppose a case where animals are in dangerous proximity to the track when discovered, but the reasonable indications are that they are about to move out of the range of danger. such event, there would be no duty to stop the train. Such requirement would be both unnecessary and unreasonable. The duty to check the train would exist only where the engineer either discovered, or, by the use of due diligence ought to have discovered, the animal in dangerous proximity to the track, and under circumstances indicating either that it would be likely to move on the track, or else probably be injured if it remained stationary."

In

And in Southern R. Co. v. Reaves (1900) 129 Ala. 457, 29 So. 594, an action for killing two mules, the court said: "When an animal is perceived near to the track of a railroad, the diligence required of an engineer of a moving train is not the same as if it were on the track, and he is not re

quired to stop or check the train, un less the circumstances indicate that the animal is likely to move on the track, or probably be injured if it remains stationary. Western R. Co. v. Lazarus (1889) 88 Ala. 453, 6 So. 877. The likelihood of its moving on the track would depend, of course, upon the circumstances,-its proximity or remoteness from the track, what it is doing, and the disposition it manifests at the time, and this likelihood, dependent upon circumstances, is for the jury to determine. It is only when the engineer, who is competent and vigilant, by keeping a steady lookout to discover stock, does not and cannot see the approach of an animal in dangerous proximity to the track, that is, so close to the train that the engineer cannot stop in time to prevent injuring or killing it, when it comes suddenly on the track, that the company is not liable for injuring it."

In Alabama G. S. R. Co. v. Chapman (1886) 80 Ala. 615, 2 So. 738, a woman walking in a path near railroad tracks was injured when a train struck a cow and threw it against her, and, as there was no negligence toward her personallv, her right to recover depended upon the issue of negligence in striking and throwing the cow from the track, and the negligence averred consisted in the alleged failure of the engineer to comply with the statutory requirements to use all means in his power known to skilful engineers in order to stop the train, the statute imputing negligence when there was a failure to comply with the statutory requirements, and imposing on the company liability for all damages to persons or property resulting from such failure. The court said: "The court evidently intended to so instruct the jury; but a fatal defect in the charges relating to this aspect of the case consists in an erroneous statement of the statutory rule as to when it becomes the duty of the engineer to use all means in his power known to skilful engineers in order to stop the train. The charges assert that a failure to attempt to stop the train, without reference to the statutory circumstances on which the duty arises, is

negligence. The statute does not re'quire the engineer to endeavor to stop the train, except on perceiving some obstruction on the track of the road. If the evidence of the engineer be believed, when he first discovered the cow, she was about 100 yards in front of the train, down the embankment; on sounding the cattle alarm, she started up the embankment towards the track; the train was an excursion train, loaded with people, and on a heavy down grade; and he was unable to stop it by the use of all the means in his power. An animal near the road is not an obstruction on the track in the meaning of the statute; and if the cow suddenly and unexpectedly started towards the track when the train was so near that the use of all the means in the power of the engineer would not have availed to stop the train in time to avoid a collision, there was no violation of his statutory duty in not making a vain and useless attempt."

But it was held in Southern R. Co. v. Wyley (1917) 200 Ala. 14, 75 So. 326, that, as there was evidence from which the jury might infer that the plaintiff's horse was upon the track for an appreciable time before it was struck and killed by defendant's locomotive, the statute was applicable to the case.

An engineer, if he sees an animal in dangerous proximity to the track, and under circumstances indicating danger of its getting on the track, should take steps promptly to frighten it away, or, if need be, should arrest the motion of the train, if possible, rather than incur the hazard of destroying another's property, and he should not wait for the animal to get on the track, if there is apparent danger of its doing so. South & North Ala. R. Co. v. Jones (1876) 56 Ala. 507; Alabama G. S. R. Co. v. Powers (1882) 73 Ala. 244.

But it is not the duty of the engineer, on discovering that a sheep has got on the track about 40 yards ahead of the train, to apply the brakes, reverse the engine, and use all means known to skilful engineers to stop the train, where it clearly appears that the train cannot be stopped in time to avoid striking the sheep, and the peril of the

passengers on the train may thereby be increased. East Tennessee, V. & G. R. Co. v. Deaver (1885) 79 Ala. 216. In this case it appeared that a flock of sheep were near a public crossing, grazing at a large pond in which they were in the habit of drinking, that one of them got upon the track when the engineer started the cattle alarm, and the rest immediately ran upon the track, about fifteen of them being killed and ten seriously injured.

And an instruction as follows: "If the jury find from the evidence that, when the engineer discovered the ox on the railroad track, it presented the appearance of a man, and the engineer believed it was a man, then he was not obliged to put on brakes and reverse his engine, until by the use of proper diligence he could have discovered that it was not a man,"-was held in Mobile & G. R. Co. v. Caldwell (1887) 83 Ala. 196, 3 So. 445, to assert a correct legal principle, except that it was too meager, in that the hypothesis should have embraced the inquiry whether the engineer was diligent in looking out for obstructions.

If an engineer keeping a proper lookout does not and cannot see horses up. on the track until it is too late to check the train in time to avoid striking them, he need not check the train, as the impossible need not be attempted. Nashville, C. & St. L. R. Co. v. Hendree (1888) 85 Ala. 481, 5 So. 173.

And in Alabama G. S. R. Co. v. Moody (1889) 90 Ala. 46, 8 So. 57, where it appeared that, as soon as the engineer discovered four or five cattle on the track several hundred yards ahead of the engine, he sounded the cattle alarm, blew for brakes, and brought the train under control and nearly to a stop before reaching the place where the cattle were, when they left the track, running down the embankment, and, after they had descended the embankment, the engineer started up the train and was getting under way when the cow that was killed suddenly ran up the embankment and attempted to cross the road about 50 feet in front of the engine, and as soon as she was discovered the engineer again sounded the cattle alarm

and blew for brakes, but the train was so near that it could not stop in time to prevent striking the cow, the court said: "The principles of law applicable to this case are few and well settled. When an animal is discovered on the track of a railroad, the statute makes it the duty of the engineer to 'use all the means within his power, known to skilful engineers, such as applying brakes and reversing the en. gine, in order to stop the train.' Code, § 1144. When the animal is discovered in dangerous proximity to the track, his duty depends upon the circumstances. If they are such as to indicate danger of its getting on the track, or to induce the supposition that it will attempt to cross, the usual means to frighten it away being unavailing, it becomes the duty of the engineer to arrest the motion of the train, if need be, or to check the speed so as to bring and keep it under control, until the animal has crossed, or the danger passed; but, if the circumstances do not indicate apparent danger of an attempt to get on the track, then the duty to check the train does not arise. In the latter case, if the animal suddenly and unexpectedly gets on the track, when the train is so near that the use of all the means within the power of the engineer could not avail to stop it in time to avoid injury, the omission to make the endeavor is not negligence, and the company is not liable for the ensuing injury. These principles have been so repeatedly and well settled by the decisions of this court, that a reassertion will suffice without further consideration." It was held that the court should have given a general affirmative charge for the defendant, but on a later appeal of the same case in (1892) 99 Ala. 553, 13 So. 233, it was held that such a charge was then improperly given, because on the second trial there was evidence, not given at the first trial, to the effect that the cow got on the track some distance in front of the engine, and ran along it for 60 yards before being overtaken and killed by the train.

The court, in Chattanooga Southern R. Co. v. Daniel (1893) 122 Ala. 362, 25 So. 197, held bad a requested charge

to the effect that if the jury believed that when the train first came in sight of the steer he was grazing off some 20 or 25 yards from the track, not showing any disposition to come toward the track, and that when he started towards the track the train was so near that it could not have been stopped before it struck the steer, then the defendant is not liable. The reason given for so holding was that such charge ignored the duty of the defendant's engineer to use the precautionary means of checking the speed of the train in order to afford an opportunity of escape to the animal, the court saying that the duty to check the speed of the train to prevent injury may be as imperative as the duty to stop the train.

Whether the railroad company's servants were guilty of negligence proximately contributing to the injury complained of was held in Southern R. Co. v. Shirley (1900) 128 Ala. 595, 29 So. 687, to be a question for the jury, where there was undisputed evidence that the engineer, after seeing a cow in a perilous position, had the time and opportunity to sound the cattle alarm, to put on brakes, and to reverse his engine, but admitted that he did not reverse the engine, and it is inferable from his own testimony that the speed of the train would have been reduced more than it was by reversing the engine, and that, had the speed been reduced even slightly more than it was, the cow would have gotten clear of the track and escaped injury.

And in Central of Georgia R. Co. v. Dumas (1901) 131 Ala. 172, 30 So. 867, an action for the death of a mule, where there was evidence tending to show that the animal was standing between the rails when the train was more than 300 yards from it, that the train's speed was not slackened until after the animal was struck, and that, until the train came within a few feet of the animal, the cattle alarm was not sounded, it was held that under this evidence it was open to the jury to infer negligence on the part of the engineer, either in failing to see the animal, or in omitting, after perceiving it, to use efforts to stop the train

such as in such cases the statute as

well as common prudence requires, when available, to avoid injury.

It was held in Central of Georgia R. Co. v. Simons (1909) 161 Ala. 337, 50 So. 50, to be a question of fact for the jury whether an engineer was guilty of actionable negligence which contributed proximately to the killing of a cow by a train, because he did not apply the emergency brakes or reverse the engine, for the reason, as he testified, that he would have thereby endangered the lives of himself and his

crew.

And a requested instruction to the effect that if the jury believe that the horse was in the path or washway, and was going up out of the cut and away from the track, there was no duty upon the engineer to apply the brakes or blow the whistle at that time, was held to be properly refused in Southern R. Co. v. Wyley (1917) 200 Ala. 14, 75 So. 326, upon the ground that it was a question for the jury under all the evidence whether the horse was so near the track as to indicate danger, and whether the engineer saw it in time to have taken precautions which might have prevented the injury.

An engineer seeing a dog on or dangerously near the track ahead is entitled to act, or to refrain from acting, on 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. Northern Alabama R. Co. v. Gantt (1919) 17 Ala. App. 74, 81 So. 852.

And in Hines v. Schrimscher (1921) 205 Ala. 550, 88 So. 661, it was held to be error to instruct the jury to the effect that, on seeing the dog on the track, though there was nothing in the circumstances to indicate to a reasonably prudent engineer that it was helpless to extricate itself from danger, or that it was indifferent at the time to its surroundings and to the dangerous approach of the train, the engineer must immediately use all the means within

his power, such as applying the brakes, and reversing the engine, in order to stop the train, the court saying that, while it is the duty of an engineer, upon discovery of a dog upon the track, or in known dangerous proximity thereto, to avoid unnecessarily injuring it, the engineer may act upon the presumption that a dog will get out of the way in time to avoid injury, or that it will not move into danger, provided there is nothing in the circumstances of its approach or manner of its being upon the track to indicate to a reasonably prudent operator that the animal is helpless or indifferent to its surroundings and danger.

Where an engineer sees a horse upon the track, running in front of the train, because of fright thereof, toward a trestle, the track being upon an embankment and the surroundings being such that the horse will probably continue his flight along the track into the trestle, if the train continues to advance, the engineer is under the duty of stopping the train and thereby removing the cause of the fright of the horse, and his failure to do so renders the railroad company liable for injury to the horse from falling through the trestle, although the train stops before coming into contact with the horse. Alabama G. S. R. Co. v. Hall (1901) 133 Ala. 362, 32 So. 259.

And in Nashville, C. & St. L. R. Co. v. Garth (1912) 179 Ala. 162, 46 L.R.A. (N.S.) 430, 59 So. 640, holding a railroad company not liable for the death of a colt which was frightened at the approach of a locomotive and ran along the track into a trestle, the court laid down the principle, which was approved upon a later appeal of the same case in (1914) 186 Ala. 145, 65 So. 166, that, after an animal is seen on the track, frightened, and running under conditions that indicate that unless the train is stopped it will run into a trestle, and that the danger may be averted by stopping the train, a duty arises to stop it, and if the engineer negligently fails to do so, the railroad company will be liable.

And in Northern Alabama R. Co. v. Foster, C. G. Co. (1917) 200 Ala. 621, 76 So. 979, where a mule running along

a track, through fright of a train, went upon a trestle and fell through the space between the ties and was injured thereby, the train not coming into contact with it, the court held sufficient, as against demurrer, a complaint alleging that the injuries to the mule were the proximate consequence of the negligence of the engineer, in that, after he became aware of the peril of the mule, he negligently continued to approach the mule, well knowing that so to do would likely or probably cause the mule to run into the trestle and injure itself, which it did.

And in Atlanta, B. & A. R. Co. v. Ballard (1919) 203 Ala. 220, 82 So. 470, holding the railway company liable for injury to a horse which, being frightened by an approaching train, attempted to escape by running down the track and into a trestle, and thereby suffered injury without being struck by the train, the court said: "The doctrine of these cases, and of other wellconsidered cases in other jurisdictions, is that the trainmen must use due care to avoid driving an animal on the track in front of the train, into a trestle or other dangerous place; and, when it appears that the animal is not going to leave the track before it reaches the place of danger, it becomes the duty of the trainmen to stop the train and drive the animal off the track before proceeding further. Where the animal can, without great danger to itself, leave the track and thus avoid the danger ahead, the trainmen may presume that it will do so. Garth v. Nashville, C. & St. L. R. Co. (1914) 186 Ala. 145, 153, 65 So. 166. But it would be their duty to sound the alarm, and also to check the speed of the train so as to bring it under control. Where, however, the animal is on a fill so high and so precipitous on both sides that it cannot be reasonably expected that it will attempt to leave the track, and it shows no disposition to do so, due care would require that the train be stopped, if possible, at a reasonable. distance behind the animal, and before it has reached the trestle."

The Tennessee statute providing that when an animal appears upon the