Action by Hall against the railroad company. The complaint is as follows: “Plaintiff claims of the defendant the sum of seventy-five dollars as damages for that on or about the .... day of August, 1900, defendant negligently caused one horse, the property of plaintiff, to run into a trestle on defendant’s railroad, and ¡thereby injured it so'it was worthless.” (There was also a mule in the coni*366plaint and in the trestle, but a® no injury to it was proved and the court charged affirmatively for defendant as to the damages claimed as to it, we pretermit the mule.) There was a demurrer ¡to the complaint on the grounds that it failed to aver or show that defendant owed the plaintiff any duty in respect of the animal and that its averment of negligence was too vague and indefinite. The demurrer was overruled, 'and properly, ■under the authority of Western R’y. Co. v. Lazarus, 88 Ala. 453; Oxford Lake Line Co. v. Stedham, 101 Ala. 376; and Louisville & Nashville Railroad Co. v. Marbury Lumber Co., 126 Ala. 237. .(We do not decide ■whether there was a judgment entry as to this demurrer. )
On the evidence before them it was open to the jury ■to find that defendant’s train was being moved forward toward a trestle, that plaintiff’s horse was on the track between the engine and the trestle running, in apparent fright of the train, toward the trestle, that the track along which the horse ran was on an embankment five or six feet high, the sides of which while not “precipitous” were yet at such an incline as that a horse in attempting to go down them would partially slide, that the train was from thiry to fifty yards behind the horse and going faster than he was — “gaining on him,” — that the engineer was aware of the situation but did not seasonably stop or check the speed of his train, that had he done so the horse would not have continued his flight onto and into the-trestle, and the injury to the animal would have been averted. In view of the phase of the case presented by these tendencies of the evidence, the court properly refused the affirmative charge requested by the defendant. Seeing the horse running directly toward the trestle in fear of the advancing train, the surroundings being such as that he would probably continue his flight along the track into the trestle if the train continued to advance, the engineer owed the plaintiff the duty of stopping the train and thereby removing the cause of the flight of the animal, and if he negligently failed to discharge this duty and in consequence the horse was injured, the defendant is liable.
*367Of course, it was a matter of inference for the jury whether the horse would or not have continued his flight into the trestle had the train been stopped when it should have been; and it was necessary, of course, for the jury to be reasonably satisfied that he ran into the trestle in consequence of 'the continued advance of the train before they were authorized to return a verdict for the plaintiff. That part of the oral charge to which an exception was reserved, taken as a whole and in connection with its context is not an erroneous statement- of law in this regard, for while in its opening clause it is open to a construction which might authorize a verdict for the plaintiff upon the jury not being reasonably satisfied that tlie horse would have gone into the trestle in any event, when it was necessary for them to find that he would not have gone there but for defendant’s negligence, yet the last- clause corrects this faulty tendency by requiring the jury to find for plaintiff only in the event the failure to stop the train contributed to the injury.
Nor, in our opinion, was the oral charge bad when referred to the evidence, for asserting that when the horse got on the main line and the engineer saw that he was headed for the trestle, it became the duty of the engineer to take -steps to stop his train. The evidence is undisputed that the horse was frightened by, and in flight from, the train and that he was -running on a considerable embankment, his easiest route of flight, but for the trestle being on and along the track. On these facts there was such obvious danger of the horse running into the trestle from the time he got on and began to run along the main track as to impress the mind of an ordinarily prudent man in the place of the engineer with the necessity of removing the cause of the horse’s fright and flight by stopping the pursuing engine, and it- then became the engineer’s duty to stop it.
We find no error in the record, and the judgment must be affirmed.