On November 2, 1920, on a “moonlit night”, plaintiff was fox hunting by a railroad track when his dog was hit by the train. Plaintiff claimed that defendant’s employee negligently ran over his dog while acting within the scope of his duties as an operator of the train. The Alabama Supreme Court affirmed a jury award of $50, and held that it was proper for the plaintiff to show the excellent hunting qualities displayed by this dog to determine its market value.
It is not error to refuse prayers or requested instructions covered or substantially covered by the instructions given.
*552 The complaint is as follows:
"The plaintiff claims of the defendant the sum of $100 damages, for that heretofore, on, to wit, November 2, 1920, the defendant was engaged in the operation of a railroad in Jefferson county, Ala., and the plaintiff says that on the date aforesaid, at or near Parkwood, in Jefferson county, Ala., the defendant's agent or servant, while acting within the line and scope of his employment, negligently ran one of its trains into, over, or against a dog, the property of the plaintiff, and as a proximate consequence thereof the dog died."
Demurrer being overruled, the cause was tried on the general issue.
The evidence showed that plaintiff was fox hunting with five of his hounds on November 2, 1920, on a moonlight night, and that his dogs were running easterly towards defendant's railroad track, which ran north and south. The dog in question was found early next morning near the track, and the indications were clear that he had been run over by a passing train. Plaintiff was some distance behind the dog, but heard them baying as they approached the track, and heard a train passing at the same time.
The evidence tended to show that the dog was reasonably worth from $50 to $75.
Defendant offered no evidence, and there was no testimony which tended to show the circumstances of the dog's presence on the track, or the manner of his killing, except as stated above, and that three feet and part of his head were cut off by the wheels.
Besides the general affirmative charge, the following charges were requested by defendant and duly refused:
*553 "(1) If you believe the evidence in this case you cannot find for the plaintiff.
"(2) If you believe the evidence in this cause you must find for the defendant.
"(3) The same high degree of care required of the operatives of a train to prevent injury to persons or stock is not required to be exercised towards dogs.
"(4) Unless you find the reasonable market value of the dog in question to be in excess of $50, then you must find for the defendant.
"(5) The rule of law governing the liability of a street railway company for killing a dog and the rule of law that governs a railroad company's liability for killing a dog is the same.
"(6) There was no duty on the defendant's engine men to blow the whistle or ring the bell on the occasion of the killing of plaintiff's dog.
"(7) The court charges that, if you are reasonably satisfied from the evidence that the dog in question tried to pass under the train while in motion, and was killed as a proximate consequence thereof, your verdict should be for the defendant.
"(8) If you believe from the evidence that plaintiff's dog come suddenly on the track, in the dark, in front of defendant's train, so that by the exercise of reasonable diligence they could not avoid injuring it, then you cannot find for the plaintiff.
"(9) Defendant's agents or servants in charge of the train on the occasion complained of were not required to use the high degree of care they would towards persons or stock.
"(10) If you find from the evidence in this case that the tax had not been paid on the dog in question, then you cannot find for the plaintiff.
"(11) If you find from the evidence that plaintiff's dog came suddenly upon defendant's track in close proximity to defendant's train, and as a proximate result thereof was struck or run over by said train, and killed, then you must find for the defendant.
"(12) You have a right to take into consideration a dog's well-known agility in avoiding injury, its superior instinct, and the fact that the night was dark in determining whether defendant's agents in charge of its train were negligent on the occasion complained of."
The points of evidence embraced in the assignments of error are sufficiently stated in the opinion.
There was a verdict for $50 damages, and judgment accordingly.
Defendant's motion for new trial was overruled, and defendant appeals.
Huey & Welch, of Bessemer, for appellant. Goodwyn & Ross, of Bessemer, for appellee.
SOMERVILLE, J.
The complaint in this case is clearly not subject to demurrer. So. R. Co. v. Hobbs, 151 Ala. 335, 43 South. 844; Gordon v. T.C.I. & R. Co., 164 Ala. 203, 51 South. 316.
When plaintiff showed that his dog was killed by defendant's train, the burden was then placed on defendant to show that the killing was not negligently done. Code, § 5476; L. & N. R. Co. v. Fitzpatrick, 129 Ala. 322, 29 South. 859, 87 Am. St. Rep. 64; A. G. S. R. Co. v. Wedgworth (2 Div. 803 Ala. Sup.) 94 South. 549. See, also the opinion of Walker, P. J., in Selma St. & Sub. R. Co. v. Martin, 2 Ala. App. 537, 56 South. 601, the reasoning of which to that conclusion we fully approve. Those decisions show that dogs are "property," and are included in that term as used in the statute fixing the burden of proof.
The trial judge properly instructed the jury as to the burden of proof under the statute (Code, § 5476), and as to the principles which govern in determining liability for the negligent killing of dogs. Ala. City, etc., R. Co. v. Lumpkin, 195 Ala. 290, 70 South. 162; Tenn., etc., Co. v. Daniel, 200 Ala. 600, 76 South. 958; Hines v. Schrimscher, 205 Ala. 550, 88 South. 661.
It cannot be affirmed as a matter of law, that the evidence showed that defendant was not guilty of negligence in killing the dog, however plausible the argument may be in support of that conclusion. The general affirmative charge for defendant was therefore properly refused.
Refused charges 3 and 9 were covered by given charge 2.
Charge 4 was properly refused, since section 5355 of the Code, providing that the judgment must be set aside and suit dismissed where the plaintiff recovers an amount below the court's jurisdiction, applies only to monied demands and to suits ex contractu, and not to actions in tort. Woodward Iron Co. v. Keller, 199 Ala. 432, 74 South. 933; Sharpe v. Barney, 114 Ala. 361, 21 South. 490.
Refused charge 5 does not state a correct proposition of law. Appel v. Selma St. & Sub. R. Co., 177 Ala. 457, 59 South. 164. Moreover, an instruction in that form is absolutely improper.
There was no evidence tending to show that the engineer did not blow the whistle or ring the bell at the time the dog was killed, nor was there any evidence tending to show that the circumstances did or did not require such a warning to be given. Refused charge 6 was therefore abstract, and its refusal was not error.
Refused charge 7 was substantially covered by given charge 1.
There was nothing in the evidence which tended to show that the dog "came suddenly on the track, in the dark, in front of defendant's train." Whether or not he did so could be only a matter of pure conjecture; and a hypothesis of fact which is conjectural merely cannot support a request for an instruction thereon. Refused charge 8 was abstract, and for that reason properly refused.
The same criticism is applicable also to refused charge 11.
Refused charge 9 was fairly covered by given charge 2. It is however, bad in form, no explanation being given as to the *554 degree of care required to avoid injuring persons or stock; and, the latter question not being involved in the case, such an instruction would, even so, have been abstract.
There was no evidence tending to show that plaintiff had not paid the license tax on the dog, and that matter was not in issue. But, in any event, the nonpayment of the tax was no defense to the action. A. C. S. R. Co. v. Wedgworth, supra.
Refused charge 12 is bad for the reason that it singles out particular facts for the jury to "take into consideration" on the issue of negligence. Stone v. State, 105 Ala. 60, 17 South. 114; Ala. Midland Ry. Co. v. Thompson, 134 Ala. 232, 32 South. 672.
It was proper for plaintiff to show the qualities of the dog as a basis for valuation, as that he was a fast dog, and had a good mouth for a fox dog.
It was proper, also, the dog being a fox hound trained to hunt foxes, to qualify the witnesses who testified to the qualities and value of the dog by showing that they had been fox hunters, and had owned or observed fox dogs and their action for 25 or 40 years.
One of plaintiff's witnesses testified on cross-examination that the dog was fast, and very active, quick in his motions, with no impediment in his operation, and that he "knew of nothing that would keep him from getting out of the way of a wagon, or automobile, or anything of that kind." Defendant's counsel asked him further:
"Do you know of anything that would keep him from getting off of a railroad track if a train was coming?"
This called for a mere opinion of the witness, as to which the basis for judgment was already before the jury. The question was properly excluded.
The same question, substantially, was propounded to another witness, and, for the reason stated, it also was properly excluded. A question to the same witness, "He was a dog that in your opinion knew danger when he saw it, didn't he?" was objectionable for the same reason, viz. that it called for the purely speculative opinion of the witness.
We have examined each of the rulings on evidence, as presented by the assignments of error, and find nothing which would justify a reversal of the judgment.
Appellant complains insistently of certain remarks made by counsel for plaintiff in connection with appellant's objections to evidence, the tenor of the remarks being that counsel were indifferent to appellant's objections, and were willing for appellant to have any sort of exceptions desired. Complaint is made also of the comment of plaintiff's counsel upon the "voluminous objections of defendant's attorney," in the hearing of the jury. It may be that some of those remarks are subject to criticism, and should not have been indulged in, viewing them from the standpoint of professional etiquette. But the regulation of such matters must, in general, be left to the trial court, and, except, perhaps, in extraordinary cases, the mere badinage of counsel during the trial of a cause will not be held as prejudicial in such degree as to warrant the reversal of the judgment.
We can discern no such prejudice here, and we do not think the remarks complained of can justify such action in this case.
For the reason already stated, we think that none of the grounds urged in the motion for a new trial are well taken, and that the motion was overruled without error.
Let the judgment be affirmed.
Affirmed.