93 Ala. 209 | Ala. | 1890
— 1. Plaintiff’s-intestate was confessedly guilty of negligence, which contributed proximately to his death, in being at the time of the fatal collision on the trestle supporting defendant’s track. He was a trespasser to whom the defendant owed no duty, except the exercise of .reasonable care and diligence after he was discovered on the track, or after his peril became apparent to its employes, to avoid injuring him. — Tanner v. L. & N. R. R. Co., 60 Ala. 621; L. & N. R. R. Co. v. Donovan, 84 Ala. 141; M. & C. R. R. Co. v. Womack, Ib. 149; Ga. Pac. Railway Co. v. Blanton, Ib. 154; Bentley v. Ga. Pac. R. R. Co., 85 Ala. 484; L. & N. R. R. Co. v. Black, 89 Ala. 313.
To entitle plaintiff to recover notwithstanding her intestate’s contributory negligence, it must have been made to appear •that defendant’s employes, after discovering his peril, failed to exercise due care and diligence to avert the injury. Such failure, with such knowledge of the situation and probable consequences of the omission of preventive effort, when such effort might have been effectual to avoid the accident, is gross negligence, so called, recklessness or wantoness, implying a willingness to inflict the injury, which is the legal equivalent, of willfulness or intentional wrong-doing, against the results of which the mere negligence .of the person injured is no defense. — Authorities supra; Carrington v. L. & N. R. R. Co., 88 Ala. 472; Ga. Pac. Railway Co. v. Lee, at present term, and authorities therein cited.
Reversed and remanded.