— In the case of the Mobile & Ohio R. R. Co. v. Williams, 53 Ala. 595, the question as to the burden of proof, in suits for injuries to stock by the cars and locomotives of railroad companies, is fully discussed;' and the rule is announced, that when the fact of the injury by the company, or its servants, is proved by the plaintiff, a prima facie- case exists, and the burden of proof is then on the railro-' company, which is sued as defendant, “ to acquit itself of negligence, or to show a compliance with the statute.” If the injury occurs at the places, and under the circumstances detailed in section 1699 of the Code, then it will be sufficient to show a compliance with the requirements of the statute. If under other circumstances than these, the evidence must be sufficient to satisfy the mind of an unprejudiced jury that the injury occurred without such negligence as would render the defendant liable under the general rules of law governing the doctrine of negligence.
Whatever doubts may be entertained as to the strict soundness of the construction placed upon sections 1399 and 1401 of the Revised Code of 1867, by the opinion of the court in that case, we are unwilling to disturb its authority, for the reason, that the sections construed have since been re-adopted by the General Assembly-into the present Code of 1876, and .this was an adoption of the judicial construction previously placed upon them. — Code, 1876, §§ 1698-1700; Ex parte Matthews, 52 Ala. 51. The case has, moreover, been several times followed in subsequent decisions of this court. — S. & N. R. R. Co. v. Thompson, 65 Ala. 74.
There was no error in the charge of the Circuit Court in reference to the burden of proof, which is admitted to be in accordance with the rule above stated.
The fact that the plaintiff had valued his horse, claimed to *160have been killed, at only two hundred dollars, or suffered it to be so valued by the appraisers whom he selected and procured to certify to the correctness of his claim, was an admission on his part as to the just value of the animal. This could be rebutted by any fact tending to show that this valuation was not based upon the real and true opinion of the persons selected to make the appraisement. It was a part of the res gestos,— the act of appraisement itself' — -that the seemingly low valuation was induced by the plaintiff’s own persuasion ; and hence the testimony of the several witnesses on this point was unobjectionable, whatever objection there may have been to the form of the question by which it was elicited. Where a question is obnoxious to objection, which is duly interposed, and the witness makes an answer to it not strictly responsive, but apparently suggested by it, the objection to the question does not cover the independent matter thus elicited. — Barnes v. Ingalls, 39 Ala. 193. It is only where the answer itself is irrelevant or illegal evidence, and is called for by the question propounded, that no separate objection to the answer is required. — Gilmer v. City Council, 26 Ala. 665.
The motion to set aside the service'of the summons and complaint, for the want of a proper affidavit, was properly overruled. Where a suit is brought against a railroad company for injury to stock cognizable in a Circuit Court, process may be executed on any one of the officers or agents designated in section 1714 of the Code, among whom is expressly included “a depot-agent;” and for this purpose no affidavit is required.— Code, 1876, § 1714. It is only in suits of another nature, other than for injuries to stock, that the affidavit required by section 2935 of the Code is required to be made, and then only where the road sued is a corporation.
A claim for damages to stock injured or killed by a railroad train is barred, under the statute, “unless complaint is made within six months from the date of such killing or injury.”— Code, 1876, § 1711. This may be done by presenting the claim, in writing, to “the president, treasurer, superintendent, or some depot-agent of the railroad company” (Ala. Gr. Southern R. R. Co. v. Killian,, 69 Ala. 277; Code, § 1701); or by bringing suit against the railroad company within the required time. — S. & N. Ala. R. R. Co. v. Morris, 65 Ala. 193. So, if the company appoints a special agent for the purpose of reporting such claims, and the claim is preferred to such agent, and he reports it in writing to the company within six months, this has been adjudged sufficient. — S. & N. Ala. R. R. Co. v. Brown, 53 Ala. 651.
It is true that the present suit was not commenced against the appellant within six months from the date of the injury *161sued for; but there was evidence tending to show that the claim was presented to the depot-agent of the defendant, and also to their authorized agent, White, who was appointed to look after such claims. The sixth charge requested by the defendant was properly refused, because it entirely ignored the alleged presentation to White, and his probable transmission of it to the company, and also withdrew from the jury, as a question of fact, whether the space of six months had elapsed from the time of the injury to the date of bringing the suit.
If the testimony of the engineer was true, to the effect that, when the horse leaped on the track, he was in such close proximity to the engine that it was impossible to arrest the progress of the train so as to prevent the injury, this state of facts would not only authorise the jury, but would render it their duty, to find a verdict for the defendant, provided that the engineer had kept a proper lookout for stock, and could not have seen the horse, even by the exercise of the very great diligence exacted by his situation. We have often announced the rule, that the law demands of railroads and their servants that degree of care which very prudent persons take of their own affairs, and that infallibility is not required. — Cook v. The Central Railroad, &c. 67 Ala. 533, and cases cited. In determining whether the engineer was guilty of negligence in looking out for probable obstructions on the track, the jury must consider that other duties also devolve upon him, which may interfere, to some extent, with the constancy of uninterrupted observation.
In all cases not free from doubt, either where the evidence is conflicting, or where it is not, and different minds may reasonably draw different inferences or conclusions on the subject, the question of negligence is one of fact for the determination of the jury. It becomes a question of law, to be decided by the court, only when the case is so free from doubt as that the inference of negligence to be drawn from the facts is clear and certain.— The City Council of Montgomery v. Wright, 72 Ala. 411; Whart. on Negl. § 420; Lanier v. Youngblood, at present term.
In view of these principles, the fn'st and seventh charges requested by the appellant were erroneous, in submitting to the determination of the court, as matter of law, the question of the engineer’s negligence vol non, based upon his alleged failure to keep a proper lookout; and the second and thirdCharges were also, objectionable, in withdrawing the consideration of this question entirely from the jury. These charges were, therefore, properly refused.
Whether it be negligence for an engineer to run his train at a certain rate, or number of miles per hour, can not be said *162always to be a question for tlie court to determine. It is most generally a mixed question of law and fact, dependent upon many controlling circumstances, including the condition and structure of the road, tlie relative straitness of the road-bed, or declivity of the grading, the character and capacity of the brakes in use, and other circumstances of like kind. There is no proof as to these various conditions in the present case, and we are not able to say that it was, or was not, per se negligence for the engineer to have been running his train at the rate of from thirty-five to forty miles per hour, at the time of the accident in controversy. This question was properly left to the jury, and the several charges requested by defendants were erroneous, which sought to devolve its determination upon the court as a pure matter of law.
We are unable to see upon what ground the fourth and fifth written charges requested by the defendants were refused to be given. The killing of plaintiff’s stock must have been attributable either to positive misconduct, in tlie nature of a willful or intentional act on defendant’s part, or else to carelessness, or to inevitable accident: If it was not the result of either of the two first causes, it certainly was of the last, and was, therefore, in such event excusable. The refusal of these charges was error, the preliminary portions of them being unobjectionable.' — M. & O. R. R. Co. v. Williams, 53 Ala. 595, 597.
The effect of quashing the service of the summons and complaint upon the Memphis & Charleston Railroad Company did not, as contended by appellant’s counsel, operate to discontinue or abate the suit. The issue of the summons and complaint was the commencement of the suit, and its pendency was totally unaffected by the act of the court in setting aside tlie service for irregularity. — Cotton v. Huey, 4 Ala. 56; Maverick v. Duffie, 1 Ala. 433. The only effect was to to necessitate the issue and service of an alias process.
Reversed and remanded.