134 Ala. 388 | Ala. | 1901
Being employed! by defendant’s contractor, plaintiff was using his team to draw a wheeled scraper on a high part of defendant’s road-bed when a train came around a curve and into s-iglit five or six hundred feet away. Plaintiff turned the team off the track, but a wheel of the scraper was struck by the train
In his complaint the plaintiff counts first in case, second in trover and third for a willful injury to the inule; hut as to the latter* count the jury were charged affirmatively for the defendant.
1. Though defendant’s servants who were running the train may not have known the road work was in progress, they were under the general duty to keep a lookout in order to avoid injury to stock ivhether trespassing or rightfully on the track; and since plaintiff was using his team rightfully he is in position to complain of any failure to keep such lookout, as well as of any neglect of the further duty which rested on defendant to use diligent efforts to avoid injury to' the team after its perilous position) Avas discovered. The space over which the train had to pass before reaching the team after it came Avithin range of the trainmen’s vision, together Avith the train’s velocity at the place of the accident, were circumstances in evidence which may have afforded a.n inference opposed to testimony of defendant’s witnesses concerning both the lookout and the efforts made at checking speed, and, therefore, the question of negligence was properly left to the jury.
2. Without evidence that the engineer Avas alone charged with those duties, especially that of looking ahead, the jury had the right to consider of fault in the the conduct of the fireman as Avell as of the engineer.
3. The owner of personal property ma,y divest himself
Reversed and remanded.