63 So. 987 | Ala. | 1913
— This is an action for damages for haying caused the wrongful death of plaintiff’s (appellant’s) intestate. It is reasonably clear from the evidence and inferences to’be drawn therefrom that intesstate was run upon and' killed by a locomotive operated, by an employee of the defendant, upon the railroad of the _defendant. Under this state of the evidence, if credited by the jury as establishing the intestate’s injury by a locomotive, operated by defendant’s servants on its railroad, Code, § 5476, cast the burden of proof on the defendant to acquit itself of negligence, for which it was responsible, proximately causing the intestate’s death, as that statute requires. — Ex parte Sou. Ry. Co., 181 Ala. 486, 61 South. 881, overruling Sou. Ry. Co. v. Smith, 163 Ala. 174, 50 South. 390. Wheth-er the defendant discharged the burden placed upon it by the cited statute was a question for the jury.
There was no evidence, or inference from evidence, tending to show willful or wanton misconduct as the . proximate cause of intestate’s death. There Avas no evidence, or inference from evidence, tending to shoAV subsequent negligence, or Avillful or Avanton misconduct, .on the part of the defendant’s employees, after discovery of intestate’s peril. There Avas no eyeAvitness, introduced on the trial. The defendant offered no evi- . dence. To the counts declaring upon simple negligence as the proximate cause of intestate’s death, his eontrib
The burden of proof to sustain the defense of contributory negligence is, of course, upon the pleader; and only on that defense as pleaded can the defendant rely for acquittal of liability for an injury resulting from negligence of servants for which the defendant is responsible; — Bromley v. B'ham R. R. Co., 95 Ala. 403, 11 South. 341; Western Ry. Co. v. Williamson, 114 Ala. 131, 145, 21 South. 827; Sou. Ry. Co. v. Shelton, 136 Ala. 191, 208, 34 South. 194.
In L. & N. R. R. Co. v. Webb, 90 Ala. 185, 194, 8 South. 518, 521 (11 L. R. A. 674), STONE, C. J., writing, these presently pertinent observations were made: “In the modern cases, many categories of fact are held sufficient to take from the jury the inquiry of contributory negligence, and direct that it be ruled on by the court as a matter of law. Of course, to come within this rule, the testimony must be sufficient in itself to bring the true and complete state of inculpating facts before the mind of the court, without the aid of inferences td be drawn, and there must be no conflict in the testimony which proves the conduct relied on as contributory negligence, if inferences are to be drawn to make the category complete, or if conflicting testimony which is pertinent and necessary to the inquiry is to be reconciled or weighed, these, in a law court,
In Bromley v. B'ham R. R. Co., 95 Ala. 403, 11 South. 343, it is written: “Contributory negligence being matter purely defensive under our decisions, it must follow that there are no presumptions against a plaintiff of a want of due care and diligence on his part, and that there is no burden on him to prove affirmatively that he exercised due care and diligence. The burden of proving contributory negligence resting on the defendant, it follows that where the proof shows injury, caused by the culpable negligence of the defendant, and the proof is wholly silent as to contributory negligence, the plaintiff is entitled to recover.” (Italics supplied. )
In L. & N. R. R. Co. v. Crawford, 89 Ala. 245, 8 South. 243, by approving quotation from Continental Imp. Co. v. Stead, 95 U. S. 164, 165, 24 L. Ed. 403 — though as quoted the word “pretended” was erroneously substituted for “presumed” — the presumption of the performance of duty enjoined, reinforced by the “instinct of self-preservation,” was recognized. This presumption is evidential. It is, peculiarly, a factor in this case. It is a presumption that accords with nature. It is generally accepted, evidentially, as universal among at least the adult and normal of the race.. It will support a conclusion against negligence or want of prudence, unless overcome by countervailing evidence or in those cases (of which this is not one as respects the defense
In Penn. R. R. Co. v. Weber, supra, the court had under view a case where a traveler was killed at a public crossing. The question presented required consideration of the matter of the traveler’s prudence in going upon the track. There the court said: “It was unquestionably the decedent’s duty, as the court below in effect charged the jury, to stop and look and listen for approaching trains, before attempting to cross the track of defendant’s road; and, if he failed to observe this precaution, his failure was not merely evidence of negligence, it was negligence in itself. But it does not follow that he omitted his duty in this respect, because he was killed by a passing train. Nor was it incumbent on the plaintiffs, in order to recover damages for his death, to sIioav affirmatively that, before attempting to cross the track, he did stop and look and listen. The common-law presumption is that every one does his duty until the contrary is proved; and, in the absence of all evidence on the subject, the presumption is that the decedent observed the precautions which the law prescribes, before he attempted to cross the defendants’ road. It is true that when the plaintiffs’ own evidence discloses contributory negligence, there can be no re
In Iowa the burden of proof is on the plaintiff “to prove by competent evidence both the negligence of the .defendant and the absence of contributory negligence by the deceased” — a rule opposite, in the latter respect, to that firmly settled here. — -Authorities ante. Notwithstanding the stated rule there prevailing, the court, in Lunde v. Cudahy Packing Co., 139 Iowa, 688, 695, 696, 117 N. W. 1063, 1066, made this deliverance, as upon apt authorities cited: “The eleventh-paragraph — the one on which the complaint of the appellant is based— was in the following words: ‘Upon the question of plaintiff’s intestate’s contributory negligence you are instructed that where there are no eyewitnesses as to the manner in which he Avas conducting himself at the time he received the injuries, the law presumes that he Avas exercising such care and caution as men of ordinary prudence, judgment, and discretion exercise under like circumstances and in relation to the same matters, unless the facts and circumstances shoAvn upon the trial negative such presumption; and you should in
In the case of T. & P. Ry. Co. v. Gentry, 163 U. S. 366, 16 Sup. Ct. 1108, 41 L. Ed. 186, these applicable principles, which are followed by the quotation from Steed’s Case, ante, made by this court in Crawford’s Case, ante, are stated: “It is undoubtedly true, as claimed by the defendant, that the deceased was under a duty not to expose himself recklessly when about to cross the track of a railroad. In Railroad Co. v. Houston, 95 U. S. 697, 702 [24 L. Ed. 542], this court, after1 referring to certain acts of negligence upon the part of a railroad company which were alleged to have caus‘ed personal injuries, said: ‘Negligence of the company’s employees in these particulars was no excuse for negligence on her part. She Was bound to listen and to look before attempting to cross the railroad track,
No “eyewitness” to the intestate’s injury was offered. According to the bill of exceptions (in which it is recited all the evidence is contained), the last time intestate was seen alive was when he was going towards (but at a distance from) this crossing, sometime befoi*e the engines passed over “the crossing. There is an absolute, complete silence, in the evidence, as to what (intestate did or did not do at or about the crossing whereat he was killed.
There is evidence to the effect that it .was dark— “plum dark,” “very dark,” as some of the witnesses stated — when the engines passed over the crossing; that they were running with the tender to the front; and that there was no headlight or other light on the forward end of the engine. There was testimony by per
So, whether, had intestate seasonably stopped and looked before attempting to- cross or go- upon the track, he Avould have seen the engine without forward light on it, running with tender in front, on a “very dark” night — as the jury might have found by crediting the witness so testifying — was a jury question. That a finding in the affirmative might be reached, inference alone must be relied on; and Avhere the drawal of inferences, from evidence, is the-jury’s province, the courts cannot do so, as was expressly ruled in L. & N. R. R. Co. v. Webb, quoted ante. The only other basis for an assertion that ordinary prudence would have warned intestate so that he might have avoided the danger — might have rendered himself free from contributory negligence — is that of the noise of the engine. It could not be affirmed as a matter of law that an engine without forAvard light on it, and AArhen it was “‘good dark,’ cannot be run upon a normal adult without his becoming aware of its approach in time for him to avoid collision therewith.
For the error in giving the affirmative charge, the judgment is reversed, and the cause is remanded.
Reversed and remanded.