— This was an action for damages for the negligent killing of an ox, the property of plaintiffs in the suit, by defendant’s locomotive and train. The killing by defendant’s train was a conceded fact. This made a prima facie case for plaintiffs, and placed upon the defendant the burden of exculpating itself from negligence in the killing by showing a compliance with the duties imposed by the statute. — Bir. Min. Railroad Co. v. Harris, 98 Ala. 326; Ga. Pac. Railroad Co. v. Blanton, 84 Ala. 157; A. G. S. Railroad Co. v. McAlpine, 75 Ala. 114; E. T. V. & Ga. Railroad Co. v. Bayliss, 75 Ala. 466; L. & N. R. R. Co. v. Posey, 96 Ala. 262.
The defendant requested in writing five, charges as shown by the record. The refusal of the trial court to give these charges are the only errors assigned. The first and second charges requested are in effect the same, and nothing more nor less than the general affirmative charge.
The engineer in charge of the locomotive which did the killing, testifying in behalf of the defendant, stated that the locomotive and train were provided with all the modern appliances for stopping trains used on well regulated railroads, and that when the ox ran upon the track, the proper signals Avére given and the brakes were applied. This being true, the natural result would have been to check the speed of the train. The witness Joe Edge, avIio was examined on behalf of the plaintiffs, testified that the train was about one hundred or one hundred and fifty yards from the ox Avhen the whistle blew, and that the ox then seemed to be standing still on the track, and that the speed of the train Avas never checked. There was, therefore, clearly a conflict in the evidence as to a material fact. Where there is a conflict in the evidence as to a material fact, or AAdiere the evidence is of that *366character, that it will authorize a reasonable inference of a material fact negativing the right of recovery of the party requesting the general charge, in such cases, the general charge should never be given. — Anderson & Shackleford v. Bir. Min. Railroad Co., 109 Ala. 129; Moody v. Ala. Great Southern R. R. Co., 99 Ala. 553.
The statute imposes no duty or requirement upon a railroad company in the operation and running of its trains, as to .stock when seen in proximity to the railroad track. By the express terms of the statute the duties of applying the brakes and reversing the engine are exacted. and required when the obstruction is perceived upon the track. But independent of the statute there are duties and obligations imposed under the common law. Among such duties is that of ringing the bell or blowing the whistle to frighten away stock, when seen, or by due diligence could have been seen, in (dose proximity to the trade, under circumstances indicating a disposition of going upon the track, and if necessary to prevent injury to the stock, the further duty of checking the speed or stopping the train. — S. & N. Ala. R. R. Co. v. Jones, 56 Ala. 507; East Tenn. Va. & Ga. R. R. Co. v. Bayliss, 77 Ala. 429; K. C. M. & B. Railroad Co. v. Watson, 91 Ala. 483. In all of these cases, however, it must be observed, that the mere fact-of close proximity alone of the animal, is not sufficient to exact a performance of these duties by the railroad company or its agents, but such close proximity must he attended with circumstances or conditions indicating danger.
There was evidence on the part of the defendant that Avhen the ox was first seam by the enginer, the animal was grazing with head down in an open field and about 25 yards from the. railroad trade, and manifested no disposition of going towards the track, and not until the train was in about 75 yards of tlie ox, when he raised his head and started suddenly and rapidly towards the track, at which time the engineer says he sounded the cattle alarm, applied brakes etc. There is no evidence that the ox started towards the train, and this being the fact hypothesized in written charge 4, rendered the charge abstract, and for that reason was properly refused.
*367The fifth charge requested by the defendant was bad in that it ignored the duty of the defendant’s engineer to use the precautionary - means of checking the speed of the train in order to afford an opportunity of escape to the animal. The duty to check the speed of the train to prevent injury may he as imperative as the duty to stop the train.
The assignment of error as to the third charge not being insisted on, it is unnecessary to notice the same.
We find no error in the record, and the judgment of the circuit court is affirmed.