The appellee sued the appellant to recover damages for the negligent killing of two cows and a yearling, the first count declaring upon the wrong suffered through the loss of the cows, and the second for the loss of the yearling. Besides the general issue, the defendant interposed amended plea 2 the theory of which was to conclude against a recovery because the plaintiff as a tenant of the defendant of a part of the unused right of way of the defendant had released damages consequent upon negligence of the character declared on. The amended plea bore an express denial of the "negligence alleged," but nevertheless claimed a release from the damages sued for. The court sustained the plaintiff's demurrer, which took the objection that the plea was neither an unqualified plea in bar nor in confession and avoidance; that, while it purported to be a plea of the latter class, yet it asserted a denial of the negligence charged. The demurrer was properly sustained.
It is an elementary principle of pleading that a plea, to constitute a defense, must either traverse or confess and avoid the matter of the complaint. Smith v. Agee, 178 Ala. 627 (the opinion in this case is correctly reproduced in Ann. Cas. 1915B, 129 et seq., and in 59 So. 647, while it is not so reproduced in our official report, cited above); Buddington v. Davis, 6 How. Prac. (N.Y.) 401, 403. In pleas of the latter class the confession is as essential as avoidance. Authorities supra. This plea would avoid, yet it does not confess, the negligence charged.
Under the evidence it was necessary to submit to the jury for decision the issues tendered by both counts of the complaint. The evidence was more forceful in support of the cause of action stated in the first count than it was in support of the cause declared on in the second count. Whether the defendant's train in fact struck the yearling was a debatable question under the evidence. If the jury concluded that a train caused the animal's death, the burden was upon the defendant to show that no negligence attributable to it proximately caused the animal's injury. Ex parte Sou. Ry. Co., 181 Ala. 486, 61 So. 881. The court did not err in refusing the general affirmative charge requested by defendant either as addressed to the whole case or as separately addressed to the counts; and the same conclusion prevails with respect to the court's action in overruling the motion for new trial on the ground that the evidence did not warrant a finding of liability under both counts.
Charge 2, given to the jury at plaintiff's instance, was to the effect that, if the jury found that a train of the defendant injured the yearling, the jury should return a verdict for the plaintiff for the reasonable market value of the yearling. Since the defendant offered no evidence to show the absence of negligence on the part of its operatives, made no effort to acquit itself of negligence in causing the yearling's injury, the charge 2 was given without error, for *Page 76 that it hypothesized a finding of fact which, if made, served to cast the burden of proof upon the defendant to show that the animal's injury was inflicted without negligence attributable to the defendant. Code, § 5476.
Charge numbered 9, refused to the defendant, did not measure up to the standard required in such cases. N.C. St. L. Rwy. Co. v. Bingham, 182 Ala. 640, 646, 647, 62 So. 111. This charge unduly restricted the duty of the engineer with respect to the lookout he is required to keep.
Charge numbered 11, refused to the defendant, misstated the degree of care and prudence the law exacts of an engineer when he discovers an animal on or in dangerous proximity to the track ahead to avoid the animal's injury. "Ordinary care and prudence" falls short of defining the extraordinary care and prudence necessary to be exercised in order to avoid liability for injury inflicted under the circumstances hypothesized in charge 11. A. G. S. R. R. Co. v. McAlpine, 71 Ala. 545, 550. The consideration given by this court to charge numbered 1, given for the defendant, in the Choate Case, 119 Ala. 611,24 So. 373, did not bear at all upon the question made by the refusal of charge 11.
Charge numbered 12 pretermits the consideration of possible negligence on the part of the engineer in discovering the danger of the animal, and was hence calculated to mislead the jury. The charge in mind of counsel in his reference to the Choate Case, supra, predicates the defendant's nonliability upon "unavoidable accident"; the quoted expression serving the purpose of excluding negligence as the proximate cause of the animal's injury. Williams v. Anniston Elec. Co., 164 Ala. 84,93, 51 So. 385, treating charge E.
Charge numbered 16, refused to the defendant, was rendered faulty in the particular, if not in others, in the use of the word "positive" as qualifying the misconduct or carelessness alluded to.
The charge numbered 16 1/2 refused to the defendant the benefit of the doctrine announced in Ga. Pac. R. R. Co. v. Fullerton, 79 Ala. 298, and in M. C. R. R. Co. v. Hembree,84 Ala. 182, 4 So. 392, where recognition was accorded the principle that the plaintiff should, in proper cases, minimize his damage suffered through the killing of his animal by railroad by exercising reasonable diligence to utilize the carcass and the hide of the animal so killed; and if the plaintiff fail to so utilize the value of the carcass and of the hide, the amount of defendant's liability was due to be tolled to the extent of the value thus lost through the want of the proper observance by the plaintiff of his duty in this regard. It was not error to refuse this request. If it could be said that the evidence of the section foreman afforded sufficient data from which the jury could find the value of the meat and the hide of one only of the two cows, the requested instruction refers to both of the cows; whereas the only possible evidence on the subject disclosed that the meat and hide of one only of the two cows had any value or could, with reasonable diligence, have been utilized by the plaintiff. The rule announced in the Fullerton and Hembree Cases, supra, is not restricted to the market value of the salvage, though, of course, that is a possible factor in showing the bases for the application of the rule.
Charge numbered 17, refused to the defendant, is said to be justified by the decision of this court in L. N. R. R. Co. v. Brinckerhoff, 119 Ala. 606, 24 So. 892, treating charge 5. The decision of that case on that point has been repudiated. C. of Ga. Rwy. Co. v. Brister, 145 Ala. 432, 40 So. 512; Reaves v. Maybank, 193 Ala. 614, 624, 69 So. 137.
Complaint is made in brief that the charge of the court delivered ex mero motu was not reduced to writing, citing General Acts 1915, p. 815. Since this objection to the method of charging the jury, if it has any merit, was not made in the court below, it cannot be considered here for the first time on appeal.
The full oral charge of the court is not set out in the transcript, as is required by the provisions of General Acts 1915, p. 815. This requirement should, of course, be observed in every instance. The transcript discloses that exception was reserved by the defendant to this sentence of the general charge: "The burden is upon the defendant to show that the railroad had the latest appliance." This statement was too exacting, to the prejudice of the defendant, in respect of its equipment. In L. N. R R. Co. v. Reese, 85 Ala. 497, 502,5 So. 283, 7 Am. St. Rep. 66, it was said, in definition of the reasonable care due to be observed by railroad companies in adopting and using equipment for their purposes, that they fulfilled "the measure of their duty, in this respect, by adopting such appliances and contrivances as are in practical use by well-regulated railroad companies and which have been proved by experience to be adapted to the purposes." This doctrine is established in this state. In the quoted extract from the court's general charge the duty of the railroad was declared to be to adopt the latest appliances — a measure of duty that far exceeded that prescribed in the rule above restated. This statement constituted prejudicial error. Because of it the judgment must be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur. *Page 77