Burson v. Louisville & Nashville Railroad, 116 Ala. 198

Burson v. Louisville & Nashville Railroad

116 Ala. 198 | Ala. | 1896

McCLELLAN, J.

It is unnecessary to consider the rulings of the trial court on requests for instructions in detail. Certain counts of the complaint charged that the injuries complained of resulted from the negligence of defendant’s serwauts. To these counts the plea of contributory negligence on the part of plaintiff was interposed. The evidence was full, and free from conflict *202in support of said plea ; and the court properly charged the jury that if they believed the evidence, plaintiff was guilty of such contributory negligence as barred a recovery under these counts. The 10th count ascribed the injury to the wanton or willful misconduct of defendant’s flagman. To this the general issue was pleaded. Conceding the truth of all the evidence, it bore no tendency to show wanton, willful or reckless wrong on the part of the flagman; and the court properly so charged the jury. The 9th count charged that defendant through its servants recklessly and wantonly and intentionally ran an engine or train upon or against plaintiff. The fact that the engineer saw plaintiff walking toward the track does not import any consciousness on his part of plaintiff’s peril; he- had a right to assume that plaintiff would observe ordinary precaution and not go upon the track; and his failure to sound the alarm on first seeing plaintiff can not be tortured into a willingness, to run over him or a reckless and wanton disregard of his safety. It may be there was some evidence tending to show that the' engineer willfully pretermitted effort to stop his engine after he saw that plaintiff did not intend to stop short of the track ; and this question was left to the jury.

Affirmed.