84 Ala. 154 | Ala. | 1887
In April, 1887, appellee’s infant son was killed by the locomotive and cars of appellant. The father brings tlie action to recover for the injury. When first seen, the child was standing on the outside of the railroad track, but near enough to be struck by the pilot in passing. The special defenses are, that tlie defendant fulfilled its duty to the child in the matter of lookout and preventive effort, and contributory negligence on the part of the parent.
The first question raised relates to the character and measure of duty of the defendant at the time and place, and under the circumstances of the accident. In Memphis & Charleston Railroad Co. v. Womack, 84 Ala. 149, we announced, as the rule of liability, that, at localities where a railroad company has the right to the exclusive use of its roadway, it does not owe to a trespasser on its track the special duty to look out for, and discover him, tlie necessity ' therefor being produced by his own wrongful act which the company was not bound to anticipate; but, when those in charge of tlie train discover him, while observing the general duty of lookout for obstructions, it is incumbent on them to use reasonable care to prevent injury. The corollary is,- that a trespasser can not maintain a claim against the company for injuries suffered while trespassing on its road bed, unless caused by wanton, reckless or intentional negligence, as defined in Frazer v. S. & N. Ala. R. R. Co., 81 Ala. 185. It was not intended to apply the rule thus stated to localities, where public roads, streets, or highways, cross the railroad track — places at which both the company and the public have a right of way for their respective and appropriate purposes. Bailroad corporations are authorized by statute to use, cross, or change public roads, when necessary in the construction or maintenance of their roadways, but are required to place the roads in a condition satisfactory to the authorities of the county having the control thereof — -a con
Section 1700 of Code of 1876, further provides: “When any stock is killed or injured, or other property damaged or destroyed by the locomotive or cars of any railroad, the burden of proof in any suit brought therefor, is on the railroad company to show that the requirements of the preceding section were complied with at the time and place when and where the injury was done.” • The construction which this provision of the statute has received is, that when stock or other property is injured or damaged by the locomotive or cars, which could be reasonably traced to a non-observance of the statutory regulations, the burden of proof is shifted on the railroad company to repel the imputation of negligence by showing compliance. — Ala. Gr. So. R. R. Co. v. McAlpine, 75 Ala. 113. In S. & N. R. R. Co. v. Bees, 82 Ala. 340, the plaintiff having proved that his mare was killed by the train of defendant, it is said: “The burden was then cast on the railroad company of showing that it has employed that measure of diligence which the law exacts of railroad companies, and that the injury was not caused by failure to do so; or, it must show that the injury could not have been averted by the employment of such diligence. Injury being proved, and no explanatory or exculpatory testimony being offered, the case is left with the burden unlifted,
The plaintiff’s child was killed within the corporate limits of the town of Heflin, and after the enactment of the act amending section 1700. The plaintiff having shown that his child was killed at such time and place, the burden is cast on the defendant to show that the care, precaution and diligence, which the law exacts, was exercised; or that the injury was not caused by a failure in these respects; or that it could not have been prevented by the use of such diligence. There was a disregard and non-observance of the statutory regulations. The engineer did not blow the whistle or ring the bell on entering the corporate limits, or while passing through the town. The train was going east; the road was straight for about sixty yards from the place where the child was ldlled westward, and then curved gradually to the left. The engineer had the window on his right closed because it was cool and he had rheumatism, and kept a lookout through the front window. After the train passed the public crossing a short distance west of Heflin, the fireman was engaged in putting coal in the furnace, and sweeping the floor of the engine, until the whistle blew for brakes. The train consisted of the locomotive, tender, three box cars, two flats and the caboose. It was running at the speed of twelve or fifteen miles an hour on an up-grade. There were two brakemen on the box cars, one of whom was sitting on the end of the car thirty feet distant from the brake, which
The record eliminates from the case the question of contributory negligence. The child was about twenty-one months old and incapable of discretion and judgment, and there is no proof whatever tending to show negligence on the part of either of the parents.
Conceding all adverse inferences which could be drawn from the evidence, the court would not have erred, if on the undisputed facts the affirmative charge in favor of the plaintiff had been given without hypothesis. We need not therefore inquire into the correctness of the rulings of the court. Though several of the charges given are subject to criticism, they could have done no injury.
Affirmed.