Louisville & Nashville R. R. v. Mertz, Ibach &. Co. , 149 Ala. 561 ( 1907 )

SIMPSON, J. —

This was an action by the appellee (plaintiff) against the appellant (defendant) for damages resulting from a collision by the wagon and mules of the plaintiff with a moving train of the defendant in the city of Mobile; the gravamen of the complaint being that said mules became frightened at the moving-train, in plain view of those in charge of the train, and they failed to check or stop the train until the frightened mules backed the wagon against the train and thus caused the injury. The motion by the deferidant to exclude the evidenre of the plaintiff wás properly overruled. As said by this court, when this case was before it at a previous term: “The question, we think, under the evidence, was properly left by the court to the jury.” —L. & N. R. R. Co. v. Mertz, Ibach & Co., (Ala.) 40 South. 60, 62.

The court of its own motion charged the jury as follows : “If the jury aré reasonably satisfied that the defendant was negligent in the matter of stopping the train after they discovered the peril, then the plaintiff would be entitled to recover” — to which the defendant excepted, and the attorney for the plaintiff, calling the court’s attention to the fact that it had overlooked the pleas of the defendant in the casé, “the court then said to the jury that it -would amend that charge by adding that, 'of course, if they are reasonably satisfied of the truth of either one of the defendant’s pleas, not guilty, contributory negligence, why, of course, they could not recover.” Without dwelling upon the indefiniteness of the charge'and explanation, in that' it is' difficult to tell to whom the pronoun “they” before “could not recover,” in the charge, .refers, we think that the explanation did not remedy the principal defect in the charge. In the present case it is claimed by the defendant'that there is nothing tó show that the motion of the cars had anything to' do with the injury, but that in all probability, -even if the cars had been stopped still the moment tlie mules became frightened, still they would have continued to rear find back against the train, ‘with the same result.* But, without regard to that contention, it is clearly incumbent on the plaintiff to allege and prove, not only that the agents of the defendant were guilty of 'negligence, but also that said negligence Was the proximate cause of1 the injury, ‘ and a charge which leaves out one of these necessary elements of the plaintiff’s case, in order-to a1 recovery, is necessarily defective, and it is error to give such a charge.-— Lafayette Carpet Co. v. Stafford, (Ind. App.) 57 N. E. 944, 946; Hall v. Cooperstown, etc., (Sup.) 3 N. Y. Supp. 584; Guinard v. Knapp, Stout & Co., (Wis.) 62 N. W. 625, 627, 48 Am. St. Rep. 901, second column; Boelter v. Ross Lumber Co., (Wis.) 79 N. W. 243, 245, second column; Gulf, C. & S. F. Ry. Co. v. Williams, (Tex. Civ. App.) 39 S. W. 967, 968, second column; Hillsboro Oil Co. v. White, (Tex. Civ. App.) 41 S. W. 874; A. G. S. R. R. Co. v. Carroll, 97 Ala. 134, 11 South. 803, 18 L. R. A. 433, 38 Am. St. Rep. 163; A. G. S. R. R. Co. v. McAlpine & Co., 75 Ala. 119. In addition, it may be said that the explanation of the charge placed upon the defendant the burden of proving the plea of not guilty.

■The court also charged the jury that, “if the plaintiffs were entitled to recover, then they were entitled to recover the válue of whatever it cost to put the wagon in proper repair, to put it in the same condition as before.” This was erroneous. The measure of damages would he, not what it actually cost, hut -what it would reasonably cost to' put the property in such condition as it was before, or the difference in the value of the property before and after the injury. — 13 Cyc. 148; Armington v. Stelle, (Mont.) 69 Pac. 115, 94 Am. St. Rep. 812.

The judgment of the court is reversed, and the cause remanded.

Tyson, C. J., and Haralson and Denson, JJ., concur.