62 So. 441 | Ala. Ct. App. | 1913
The appellee brought suit in the trial court to recover damages for the negligent killing of plaintiff’s intestate, W. H. Kelley.
One of the counts of the complaint on which the case was submitted to the jury alleges that the agents or servants of the defendant, acting within the line and
There are numerous other assignments of error based on the rulings of the court on the pleadings, but they are not insisted upon in argument or brief so as to necessitate a discussion of them here. It appears from the record that the counts of the complaint other than count 1 as last amended and counts A. B, and C were abandoned and the case submited to the jury on these counts alone; one of them being grounded upon allegations of subsequent negligence.
The cardinal question involved and presented by the appeal, and the proposition insisted upon most strenuously and argued at greatest length, is the refusal of the court to give the general charge requested in writing-on behalf of the defendant.
It is shown without conflict in the evidence set out in the bill of exceptions that plaintiff’s intestate was found dead near the track of defendant’s railroad at about 9:45 o’clock on the morning of December 8, 1911. His body was lying with the head toward the track and about two
There was no contention nor any testimony to support a contention that the plaintiff’s intestate was on the defendant’s right of way by invitation, permission, or acquiescence of the defendant. It was shown that the following trains passed over the defendant’s railroad at the point where plaintiff’s intestate’s body was found, covering the period from the time that he was last seen alive on the evening of December 7th until the time his body was found the next morning, December 8, 1911, viz.: No. 72, east bound, passed Cragford at 6:05 p. m., December 7th; extra No. 1,608, east bound, passed Cragford at 6:32 p. m., Décember 7th; No. 26, east bound, passed Cragford at 9 :3Í p. m., December 7th; No. 71, west bound, passed Cragford at 4 o’clock a. m., December 8th; No. 74, east bound, passed Cragford between 6.50 and 7 o’clock a. m., December 8th; No. 25, west bound, passed Cragford at 7:34 o’clock a. m., December 8th; and No. 73, west bound, passed Cragford about 9:45 o’clock a. m., December 8th. The crew of this train discovered the body lying near the track as we have described, stopped the train, and reported the matter, but did not move or disturb the position in which they found the body lying. The engineers of each of the seven trains were examined as witnesses, and each of them testified that he did not see the plaintiff’s intestate, except the engineer of No. 73, the train whose crew discovered the dead body lying near the track. The engineer of the extra 1,608, testified that as he passed Bostic’s Spur he saw an elderly man sitting on a pile of lumber alongside the track at that place, and that this man waved a bottle at him as the
No other inference can be drawn from the whole evidence than that, if plaintiff’s intestate received the injuries causing his death by having been struck by an engine or car on the defendant’s railroad, he was a trespasser at the time of being struck. — So. Ry. Co. v.
The plaintiff’s intestate being a trespasser on the defendant’s right of ivay without any pretense of 'invitation, permission, or acquiescence upon the part of the defendant, it owed to him only the duty of using all reasonable efforts to prevent the injury after discovering his peril on the track, or in dangerous proximity thereto, and becoming aware that he could not or did not intend to attempt to extricate himself therefrom. — So. Ry. Co. v. Gullatt, 150 Ala. 318, 43 South. 577. Unless there is knowledge of the peril, there is nothing upon which to predicate subsequent negligence. — Johnson v. B. R. L. & P. Co., 149 Ala. 538, 43 South. 33.
There is absolutely no testimony showing that the plaintiff’s intestate was on the track, or in dangerous proximity thereto, in advance of an engine on defendant’s railroad, or that the engineer in charge of the operation of any locomotive saw, or could have seen, him in time to prevent the injury. Nor is there any evidence affording a basis from which such an inference could he drawn. Under the undisputed facts in this case there was no duty resting upon the servants of the defendant to keep a lookout for the plaintiff’s intestate at the point on the track where he was discovered fatally injured. — So. Ry. Co. v. Drake, 166 Ala. 540, 51 South.
Not only is there no evidence that would fairly warrant the inference that plaintiff’s intestate was on the track ahead of an engine in time for the engineer in charge to stop after becoming aware of the intestate’s peril before striking him, but there is no evidence that he was struck by an engine. The doctor who examined the injuries on the plaintiff’s intestate before the body had been moved, a witness introduced by the plaintiff,' testified that he was unable to conclude that an engine struck the deceased, and if, after an examination made under such circumstances as these, this witness, drawing to his aid his technical knowledge, could not say that an engine had struck the deceased, how could any one else say that the deceased was struck by an engine or locomotive? What basis for a finding of this fact by the jury was afforded by the evidence? The evidence set out does not in our opinion disclose any testimony authorizing a finding of this fact necessary to the plaintiff’s recovery. So far as anything appears in the evidence to the contrary, it might as well be assumed from the facts proven that the plaintiff’s intestate received the injuries from having come in contact yith the side of a car, or in some other way, as that he was struck by an engine when in front of it on the track. It would be but the merest conjecture from the evidence adduced upon the trial, as set out in the bill of exceptions, to say how the plaintiff’s intestate was struck and injured. Certainly there is nothing to show that he was on the track ahead of the engine when struck, and the court was in error in refusing the general charge requested by the defendant.
An analysis of the opinions in the following cases will be found to support our holding as applied to the facts
For the error in refusing the general charge requested by the defendant, the judgment of the court below must be reversed.
Reversed and remanded.