90 Ala. 29 | Ala. | 1890
Trial below was had without jury, and the exception reserved to the judgment imposes on this court the duty of reviewing the evidence, without indulging any presumption in favor of the action of the court below thereon; and if error be found in the conclusion reached by the trial court, it is further made our duty either to render such judgment as should have been rendered in the first instance, or to reverse and remand the cause, as we may “deem right.” Acts 1888-9, pp. 564, 569.
The damages sustained were sustained by reason of defendant’s cars colliding with plaintiff’s wagon. A private road ran along defendant’s right of way, and on its road-bed and track at the point of collision. There was another road leading to the Woodstock furnaces, plaintiff’s point of destination, which did not encroach on defendant’s right of way or track, and which was equally as good as the route taken by plaintiff, though some longer; but it was shown that the latter was generally used by persons hauling to the furnaces. Plaintiff drove upon defendant’s track, without looking up or down it, and proceeded along the track without keeping any look-out for approaching trains; and this though he was slightly deaf, and should for that reason have been more diligent in the use of his organs of sight. Had he looked up the track when he drove on, he would have seen defendant’s train thereon within from one to. two hundred yards of him. Had he maintained a diligent outlook after driving on the track, and while proceeding along it in the opposite direction, he would have seen five or six detached cars running of their own weight down a grade towards him, in time to have driven off the road-bed, and thus have avoided the collision. It is at once apparent from the facts stated that the jilaintiff was a trespasser on the track of the defendant, and that he was guilty of negligence in going upon and along the track without keeping a look-out, so contributing to the injury as to afford to the defendant a complete defense to any charge of mere negligence on the part of its employes. L. & N. R. R. Co. v. Black, 89 Ala. 313; Gothard v. A. G. S. R. R. Co., 67 Ala. 114. The judgment appealed from, therefore, must find its justification in something more than simple negligence on the part of the defendant. The negligence imputfed must be so gross as to involve the legal element of willfulness or recklessness.
The evidence reasonably satisfies us that, when plaintiff approached the track, defendant’s train was stationary, within, as we have said, from one to two hundred yards of the plain
The judgment .of the -City Court is, therefore, affirmed.