108 Ala. 233 | Ala. | 1895
1. What the height and size of plaintiffs intestate, who was killed by tbe train, had to do with the issue of the case, it is difficult to understand. He was shown to be of m 'diuui height and size. The defendant objected to this proof when offered, because it was irrelevant, immaterial and illegal, but it was let in. It also moved to exclude it, on the same ground, but the motion was overruled. The company was certainly liable to no greater damages, or loss, because the deceased was ot the height and size named. The only effect of such evidence was to confuse and mislead a jury’s mind from the real issues in the cause. Prom the very fact the court let it in against the objection of defendant, was calculated to impress them, that it was a damaging fact against the company. We note, the appellee’s counsel malee no attempt, in their written argument filed in the cause, to sustain the ruling.
2. The defendant’s witness, Smith, had testified, that he saw plaintiff’s intestate when he attempted to get on the train at the time he was killed, and that it was moving from four to six miles an hour, and in making the attempt, with both arms full of bundles, he fell under the front coach, and in front of the trucks of the rear coach, and was run over by two sets of trucks in rear of where he fell and was killed. That the deceased boarded the train while in motion, as deposed by this witness, was corroborated by several other witnesses for defendant. Two witnesses examined by plaintiff, testified that
3. All the witnesses examined in this case who saw the accident. — four in number, two for the plaintiff and two for the defendant, as well as three others for the defendant, — the conductor, engineer and fireman, — all locate the scene of the accident, about midway between 21st and 22d Streets in Birmingham, about opposite to Trousdale’s livery stable, on the north of the railroad; and the time, the 4th of March, 1893, and as the evidence tends most strongly to show, between 7 and 8 o’clock p. m. The two witnesses for the plaintiff Mary Shepard and Jack Ferguson, swear that the train had stopped at this place, on its trip into Birmingham from East Lake, to discharge passengers, and they and the plaintiff’s intestate, attempted to board the train, Ferguson in the lead, Shepard next, and intestate following ; that when the cars started, they did so with a jerk, which threw Ferguson, just entering the coach door, back, striking Shepard who was on the platform or first step from it, and knocking her backwards, striking intestate, which threw him, — yet on the first step from the ground, — off under the wheels, and he was killed. Neither of these witnesses testify, that either of them was thrown off the cars by the jolt they describe as occasioned by the starting of the train, nor do they say there was any other passenger, who attempted to get on, besides themselves and intestate.
The two witnesses for defendant, — Charley Smith and C.L. Cartwright, who saw the accident, and the conductor, engineer and fireman, — all swore that it occurred, on the date, about the hour and place, as described by the plaintiff’s witnesses ; but they all swear, that at the time the intestate attempted to board the train, it was running from 4 to 7 miles an hour; that it had not stopped at all, between the two streets referred to ; that it had just before that, stopped at the regular stopping place, on the west margin of 22d Street, to discharge ■
The conductor, engineer and fireman did not see intestate, at the moment he made the attempt to board the train. They did, however, each state, that they felt the jar when he was run over ; that the train was immediately stopped, and that they got out and took him dead from beneath the trucks, and it is shown that the wheels in passing over him, were thrown from the track. This fact, of itself, is very convincing evidence, that the train was in motion, and had not just started, after a standstill.
To one fact, the two witnesses for the plaintiff, and tho two for defendant, who swore they saw the accident, do agree, and that is, that when intestate attempted to get on the car, he had both his arms full of bundles. Mary Shepard said : “And her falling back on said intestate knocked him back, and, as he had both arms full of bundles, could not catch the iron railing up along the side of said steps, and he fell under the coach,” &c. Jack Ferguson testified as to this, that “Said intestate, having both his arms full of bundles, could not catch said railing along by said steps.” If the train was in in motion, running at from 4 to 7 miles an hour, according to the account of defendant’s witness, aud he' attempted to board it, with his arms full of bundles, it was the sheerest negligence bordering on recklessness for him to have attempted to do so.
■Whether-.the train was at -a .stand-still when .intestate attempted- to .board it ,/or-was • m-;motionis.-:a-.-que@tion.'Qf disputed facts proper for the determination-of'-the jury, tinder the evidence, therefore, the first---and Second charges requested by" defendant were-properly-refúséd.
There was no proof that intestate was ever on the platform of the car, and was thrown therefrom, but all the proof shows he had, attempting to board the train, ascended no further than the first or lowest step of the car, and was thrown from it. There was a variance, therefore, in the allegations of the third count, and the proof, and the third charge requested by defendant and refused, should have been given.
4.' The preponderance of the evidence before us in this transcript, was so greatly in favor of defendant, as in our judgment presented a case for a new trial. The ruling of the court .in denying the motion was plainly erroneous.
Reversed and remanded.