Tbe statutes provide tbat tbe engineer, on perceiving any obstruction on the track of a railroad company, must use all the means witbin bis power known to skillful engineers, sueb as applying brakes and reversing engine, in order to stop tbe train; and also, wben stock is killed or injured, tbe burden of proof is on tbe company to show a compliance with this statutory requirement. — Code, §§ 1144, 1147. Tbe duty, however, to apply tbe brakes and reverse tbe engine does not arise, unless tbe obstruction is on tbe track, and perceived by the engineer.- — East Tenn., Va. & Ga. R. R. Co. v. Bayliss, 77 Ala. 428.
In a suit against a railroad company for injury to stock, proof of the mere -fact tbat tbe stock was killed by a moving train casts, under tbe statutory provisions, the- burden on tbe company to acquit itself of the negligence presumed by tbe law m such cases ; and unless tbe burden is lifted, entitles’ tbe plaintiff to a verdict. Notwithstanding, under a literal construction of its imperative and unqualified terms, tbe statute may be regarded as commanding observance of tbe statutory requirement in all cases, and under any circumstances, where an obstruction is perceived on tbe track, it has been repeatedly and uniformly construed not to exact strict observance, wben there is no reasonable possibility of averting tbe disaster by any amount of diligence — such a *151contingency being considered without the reason, spirit and policy of the statute. Under this construction, the presumption of negligence, arising from the fact of injury, is overcome, when the defendant shows that the failure to discover the obstruction sooner was not owing to a want of care and watchfulness, and that when discovered the use of all means known to skillful engineers would have been powerless to stop the train in time to prevent a collision. M. & G. R. R. Co. v. Caldwell, 83 Ala. 194; E. T., V. & G. R. R. Co. v. Deaver, 79 Ala. 216; A. G. S. R. R. Co. v. McAlpine, 80 Ala. 73.
lit the general charge, the court instructed the jury: “That the burden was on the defendant to show a compliance with the requirements of the statute, as to reversing the engine and applying the brakes, after discovering or seeing the cow on the track.” There was testimony tending to show that the cow, being in a wash in a cut, was obscured from view, and was not, and could .not have been discovered, until she ran from the wash on the track, about forty yards in front of the engine, and that when discovered reversing the engine and applying the brakes could not possibly have prevented the injury. If these be the facts, the engineer need not attempt to stop the train ; and if satisfactorily shown, defendant is not required to show a compliance with the requirement of the statute as to reversing the engine and applying the brakes; the defense is complete without showing such compliance. When referred to the evidence, and construed in connection with its tendencies, the proposition of the charge implies, that it was the duty of the engineer to reverse the engine and apply the brakes on perceiving the obstruction, though the cow suddenly ran on the track in such close proximity to the engine, as to leave no room for a reasonable possibility of avoiding a collision by the use of all the means in the power of the engineer. The charge may assert a correct general proposition; but, when applied to each phase of the facts which the evidence tended to show, it is incomplete in that it ignores and draws from the consideration of the jury the testimony tending to show that, without fault on the part of those in charge of the engine and train, the cow was not, and could not have been discovered, until no skill or diligence could have prevented the disaster.
In N., C. & St. L. R. R. Co. v. Hembree, 85 Ala. 481, the charge given at the instance of the plaintiff was as follows : “If the jury are reasonauly satisfied that plaintiff’s mare was killed by defendant’s train, at the time alleged, then, *152unless defendant bas reasonably satisfied them that its agents or servants in charge of the train did all in their power to avoid the killing, they must find for the plaintiff;” substantially asserting the same principle as the charge under consideration, except that the latter requires specific proof of compliance with the requirements of the statutes in particular respects. In view of the testimony, the charge was held to be erroneous. It is said : “Engineers are not required to do all in their power, nor to do anything, when it is manifest that nothing they can do can possibly prevent the injury. The charge would have been correct, if it had contained this additional clause : ‘Unless the jury are reasonably convinced that there was no fault in not sooner discovering the mare, and that when discovered no amount of diligence could have prevented the collision.’ ” A similar qualifying clause would have rendered the charge we are considering complete and correct.
The charge asked by defendant, in the following language, “If the jury believe from the evidence that the animal came down the side of a cut from behind an obstruction about forty yards in front of the approaching train, they must find for the defendant,” is too meager. That the engineer could not have sooner discovered the cow, because of the obstruction, should have been embraced in the hypothesis.
The affirmative charge requested by defendant was properly refused. Plaintiff, having proved the killing, made a prima facie case of negligence, which called for rebuttal. On'the entire evidence, whether the presumption of negligence was satisfactorily rebutted, was a question for the jury.
Reversed and remanded.