The gravamen of the complaint is that —
"The defendant, its agents or servants, while in the operation of a railroad and a car thereupon, negligently caused or allowed said car to run over or against a cow," etc.
The evidence shows, without dispute, that the car which caused this injury was not then operated by defendant's agents or servants, but by the agents or servants of the Sheffield Coal Iron Company; for it cannot be said that the latter company, in loading defendant's cars for its own private uses, and placing them at a convenient point for defendant, was acting as agent for defendant. This essential allegation of the complaint was not supported by the evidence and the affirmative instruction for defendant should have been given.
Again, a charge of negligence in the operation of a car is not supported by proof of a defective brake. Bell v. Ala. Mid. Ry. Co., 108 Ala. 286, 19 So. 316; Knight v. Tomb. Valley R. R. Co., 190 Ala. 140, 67 So. 238.
The evidence does not show any negligence on the part of any one in the operation of the car, but merely a failure of the brake to work properly. On this theory of the case, also, defendant was entitled to the affirmative charge as requested.
The measure of damages in cases where animals are injured, but not killed, is discussed and stated in the case of South. Ry. Co. v. Gilmer, 143 Ala. 490, 39 So. 265, 5 Ann. Cas. 414, to which we need only refer.
It was competent for defendant to show the value of the injured cow at the time of the trial, "as bearing upon the extent and permanency of the injury." 13 Cyc. 208 (B). Indeed, the allegation of the complaint that the cow was so injured that "she is worthless" brought her subsequent value directly into issue. And, apart from this, the excluded question was relevant, not only in contradiction of the testimony of the plaintiff, but in rebuttal of the witness' testimony in chief.
In excluding the question to Henley as to the cow's value at the time of the trial, there was prejudicial error.
Let the judgment be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur. *Page 634