| Ala. | Nov 15, 1902
TlK're was evidence, adduced on the trial upon which it was open to the jury to -find that, the train which ran against and killed ..Wicks, plaintiff's intestate, was running from twenty-five to forty-five1 miles an hour when the engineer discovered him-on the track, that a train such as that .was, going at that rati1 of speed on an up-grade such as existe,d at the place, could he stopped within one hundred and twenty-five yards, that the engineer discovered Wicks when the engine was more than two hundred yards from him, that he was then sitting on the end of a cross-tie or between .tin1 ends of cross-ties on the outside of, hut leaning over the rail; that, he was asleep; that it was apparent to the engineer when he first saw him that he was asleep, the. engineer himself testifying that Wicks was sitting “in a stooping over position like he was nodding and witness could see his head move kind of backwards and forwards;’’ that he was not awakened by the approach of the train or the alarms which the engineer sounded, but continued asleep and was struck and killed while lie was asleep; that the engineer made no effort to stop the train when he saw Wicks, asleep' on the track, nor indeed until’he had been struck and killed; and that the train was not stopped until it had gone two hundred yards beyond Wicks’ body. We can-' not hesitate to (lindare that these tendencies of the evidence afforded ground for a conclusion on the part of the jury that the engineer recklessly and wantonly and with .marked indifference to probable disastrous.consequences took' the unnecessary chances of Wicks’ awakening and'extricating himself from-his position of imminent and deadly peril or of remaining asleep. • and goi'iig to his death as he did; and that having so-gone to his death lie was wantonly killed by the defendant as charged in the third count (if the complaint. The trial court, therefore, properly refused the affirmative charge requested by the defendant, and also charge two, to the effect, that the engineer was “not guilty of any willful or wanton negligence.”
A man who is so sound asleep as the noise and alarms of an immediately approaching train does not. awaken him is unable to leave the position he may be
Charge 7 requested by defendant was also bad. Profound slumber is a “physical or other disability to leave the position” occupied by the sleeper.
. Having in mind the settled rule which wisely accords to the judgment of the trial judge denying a motion for a new trial, the prima facie presumption of correctness, and authorizing a reversal of that judgment here only when it is plainly erroneous, we cannot see. our way to reversing the ruling on the motion for a.new trial in.this case.
Affirmed.