In order to recover for the negligent killing of plaintiff's yearling, it was, of course, necessary for plaintiff to show that it was in fact killed by defendant's train. Such a killing might be inferred from the posture and condition of the carcass, and from other physical signs. But from the mere fact that a dead animal is found within 50 or 75 feet of a railroad track, without any signs of physical violence that could have caused its death, no legitimate inference can be drawn of a killing by a locomotive or cars.
We think that charge 6 should have been given for defendant, and that its refusal was prejudicial error.
It is conceded by appellee that the oral instruction to the jury as to the duty of the engineer to keep a constant lookout for animals on or dangerously near the track was abstractly erroneous. N.C. St. L. Ry. Co. v. Bingham, 182 Ala. 640,62 So. 111.
As pointed out in that case, he may be sometimes engaged in the performance of other lawful duties in the car and operation of his engine. In the instant case, however, it affirmatively appears from defendant's evidence that the fireman was looking after the requirements of the locomotive between Linwood and the place of the killing of the two cows, and that during that time the engineer was in fact keeping a constant lookout from his post on the right side of the engine. Hence appellee contends that the instruction could not have been prejudicial to appellant, since the testimony shows that the duty specified was in fact fully discharged by the engineer.
The argument is plausible, but nevertheless unsound. The jury may have disbelieved defendant's evidence in this regard, and, disbelieving it, have therefore found that defendant was, under this instruction, guilty of actionable negligence. On the other hand, if they had believed it, they could not have found otherwise than for defendant, since the testimony — unquestionably that of the engineer himself — completely exculpated defendant from all fault in striking and killing the cows.
We cannot venture to say that the erroneous instruction was harmless; for, in view of the alternative stated and the verdict actually round, it was probably prejudicial.
There was no error in refusing the general affirmative charge for defendant as to either of the counts, since the evidence permitted reasonable inferences in favor of plaintiff.
For the errors noted, the judgment will be reversed, and the cause remanded for another trial.
Reversed and remanded.
All the Justices concur. *Page 498