— The rule governing the burden of proof as to negligence in trials involving injury to stock by the locomotives or cars of a railroad in this State has been regulated by statute. The different enactments on the subject are particularly mentioned in the opinion rendered in Ga. Pac. R. R. Co. v. Hughes, 87 Ala. 611, and again in the opinion in Birmingham Min. R. R. Co. v. Harris, 98 Ala. 326.
Under the statutes as they existed prior to the Code of 1886 the onus placed by them upon the railroad to acquit itself of negligence in such cases applied without regard to the place AAdiere the injury occurred. — Code of 1876, § 1700; Code of 1867, § 1401. A change appears in the text as prepared for the Code of 1886, section 1147, Avhereby the operation of the rule Avas proposed to be restricted to cases AAdiere the injuries occurred at one of the places mentioned in the three next preceding sections. This proposed change was prevented by an act approved February 28,1887, the same day that Code was adopted and which embodied the provision of the pre-' vious. Code. This act Aims inserted in the Code of 1886 as a note to its section 1147 and as the later expression of the legislative Avil.1 it controlled that section. — Harris’ case and Hughes’ case supra.
Again in the Code of 1896, § 3443, the codifiers have inserted in this provision of the statute words as to place, which by the adoption of the Code, wrought a change in *528the rule in question, so as to place the burden of proof as to its negligence upon the railroad company only where the injury was inflicted “at any one of the places specified in the three preceding sections.” The statute as so changed governs the present case and decisions upon cases afi.sing under former and different statutes are not here in point.
To cast the onus upon the defendant of disproving negligence, the plaintiff must have shown not only that the defendant inflicted the injury, but that it occurred at or near a public road crossing, the crossing of two railroads, a regular station or stopping place, or in a village, town or city. There was no proof -tending to show that the place of injury was near or was within a quarter of a mile of any such place and therefore charge numbered 2 requested by the defendant should have been given. (McClellan, C. J., and Haralson, J., dissenting.)
Persons running a train are charged with the general duty of keeping a lookout for animals and of using diligent efforts to avoid injury to them when seen in peril on or near the track. — Sistrwik’s case, 85 Ala. 353; Watson’s case, 90 Ala. 41; Chattanooga Southern R. R. Co. v. Daniel, 26 So. Rep. 197. In view of such duty and of the evidence respecting the character of the road as affording opportunity for avoiding the injury after the plaintiff’s cow might have been seen, it cannot be affirmed that there was no evidence tending to show negligence on the part of those operating the train.
The identity of the cow which according to Hall’s testimony Ayas killed by defendant’s train, with that found dead by the plaintiff and for Avhich he claims, was a question for the jury. The defendant Avas not entitled to the general affirmative charge in its favor, but- for the error in refusing charge 2 the judgment avíÍI be reversed and the cause remanded.