68 So. 356 | Ala. | 1915
The action is under the homicide statute. Plaintiff’s intestate was killed by a southbound passenger train, at about 4 o’clock in the afternoon of December 14, 1911. He was on or near the defendant’s railroad track and near some swamp, and there appeal's to have been considerable fog at the time and the place of the injury. The accident occurred near Flint’s station, a few miles south of Decatur, but not at any one of the places mentioned in the statute (section 5473 of the Code of 1907). The speed of the train, on the occasion in question, was estimated to be from 20 to 45 miles per hour. On the undisputed evidence intestate was a trespasser at the time of the injury. Three counts of the complaint, 1, 2, and 3, charged subsequent negligence; and one count, 4, charged wantonness or willful injury. There was absolutely no evidence tending to prove this last count, No. 4. The only evidence tending to prove subsequent negligence was that to the effect that intestate was seen by other persons than the train crew, and that the track was straight. This alone, of course, was not sufficient, under our repeated rulings. It must be shown that those in charge of the train actually saw the person on, or dangerously near, the track. The engineer testifies that he did see the deceased before the engine struck him, but not in time to prevent the collision. He says that he saw an object on or near the track, when within 200 feet of it, but that he did not perceive it to be a person until he was within 100 feet; that he immediately did all within his power, or that of a skillful en
(1) There was no evidence or circumstance to show that the train crew, or any other witnesses, testified falsely; and, as we have said, there is nothing in this record to indicate that they did so falsely testify.
The trial court evidently proceeded upon the theory that the case was brought within the provisions of section 5476 of the Code, and that plaintiff made out his case when he proved that his intestate was killed by an engine or locomotive of the defendant. In this, the trial court was in error, as we have pointed out in recent cases, — L. & N. R. R. Co. v. Jones, 191 Ala. 484, 67 South. 691, and L. & N. R. R. Co. v. Moran, Adm’r, 190 Ala. 108, 66 South. 799. The recent cases on this subject were reviewed in these two cases; and it was decided, after mature consideration, that the statute in question does not have the effect to cast the burden of proof upon a railroad company to acquit itself of negligence, where a- trespasser on its tracks is stricken by a passing train. It is pointed out that in such cases the only actionable negligence alleged is negligence of the defendant railroad company after the discovery of the peril. The complaint in such cases, of course, admits, if it does not expressly allege, that the injured
(2) Under all the evidence in this case the defendant was clearly entitled to the affirmative charge in its favor. The undisputed evidence showed that it was impossible to prevent the injury after the peril of intestate Avas discovered. There is no evidence tending to shoAV that his peril Avas ever discovered by any one Avho could or should have prevented the injury, except the engineer, and no evidence nor circumstance tending to shoAV that he discovered intestate sooner than he claimed in his testimony to have done, and no evi
There was no evidence which tended to contradict this testimony, except other evidence as to the speed of the train, and none to show that the train could have been stopped in time even if the train had been going
(3) The law imposes on railroad companies the duty ■of keeping a lookout for ordinary domestic animals straying on their tracks, but not for intelligent human beings who are trespassers thereon. Such beings are presumed to know of the danger and to keep a lookout for passing trains or engines; yet notwithstanding this higher duty as to such animals, the railroad ■company would not be liable in this case if it had killed a horse instead of an intelligent being, who was a trespasser and was himself guilty of negligence. In speaking of the liability of railroad companies in such cases, Stone, C. J., said, in Hembree’s Case, 85 Ala. 485, 5 South. 175: “On the other hand, if the officer in control of the train is skilled in his profession, is watchful, and a dumb animal comes on the track in front of, and in such proximity to, the train as .that the latter cannot be stopped in time to save the animal, then the engineer need do nothing; for he need not attempt the impossible. In such case, the railroad company is not liable, unless with proper watchfulness, considered in connection with his other duties, the engineer could have •discovered the approaching animal in time to frighten it away with the cattle alarm, or stop or check the train so as to prevent the collision. It is not every injury a train may inflict that fastens a liability on the railroad company. If a law were so to declare, it would be unconstitutional. — Zeigler v. S. & N. R. R. Co., 58 Ala. 594. And juries, under their oaths, cannot establish a rule for their government, and act on it, which, if declared by the Legislature, would be adjudged unconstitutional. The true and only rule, sanctioned
This case has been repeatedly followed, and the same rule often applied, where a person is killed or injured by passing trains or engines.
If the evidence in this case is true, no human agency could have prevented killing intestate after his peril was discovered. It follows that the general affirmative charge should have been given for the defendant.
Reversed and remanded.