89 Ala. 313 | Ala. | 1889
The principles which must control this case are settled by our former rulings. Plaintiff’s intestate was walking on defendant’s track, at a place which was neither a public crossing, nor in a city, town or village. He was a trespasser, and the defendant owed no duty to look out for trespassers.—M. & C. R. R. Co. v. Womack, 84 Ala. 149; Carrington v. L. & N. R. R. Co., 6 So. Rep. 910; 88 Ala. 472. A person on a railroad track, either crossing it, standing on it, or walking on it, must employ eyes and ears, that he may be informed whether there is an approaching train; and if he fail to do so, he is guilty of negligence.—S. & N. R. R. Co. v. Thompson, 62 Ala. 494; Gothard v. Ala. Gr. So. R. R. Co., 67 Ala. 114; Frazer v. S. & N. R. R. Co., 81 Ala. 185; L. & N. R. R. Co. v. Crawford, ante. Employees running on an engine or train on a railroad track, when they discover a person on the track, who, from appearance, is an adult, or of discreet years, are justified in supposing such person will see or hear the approaching engine or train, and get off the track; and hence, in such conditions, there is no duty to stop or check the train, in the absence of other attendant circumstances. Tanner v. L. &. N. R. R. Co., 60 Ala. 621; Frazer v. S. & N. R. R. Co., 81 Ala. 185. The railroad employees may act on this presumption, until circumstances- — actual circumstances, brought to their knowledge — make it apparent that the trespasser is not aware of the approach of the train, or
Applying the foregoing principles to this case: The defendant owed no duty to plaintiff’s intestate, to keep a lookout for him, he being a trespasser on its track, and having the size and appearance of an adult. When he was discovered, defendant still owed him no duty to stop or check its train, until it is shown that those running it became conscious that he was not aware of his danger. When the employees discovered that he was unconscious of their approach, it then became their duty to save him, if, by the appliances at their command, they could do so. This duty, however, did not arise until, by intestate’s conduct, he showed that, from deafness, or some other cause, he was unconscious that the train was approaching. If, when the employees discovered that intestate was ignorant of his danger, it was then too late to save him, the verdici of the jury should be for the defendant; for up to that point it had done no wrong. If, however, the railroad employees, after making such discovery, could, by the appliances at their command, have stopped the train and saved his life, and if they did not in good faith attempt to do so, their failure to act, when it would probably have been successful, would be negligence so reckless and wanton in degree, as to become the legal equivalent of intentional wrong, and would entitle plaintiff to a verdict, notwithstanding his intestate’s prior negligence. L. & N. R. R. Co. v. Crawford, ante. Such case would present the secondary stage of peril, mentioned in Tanner's Case, 60 Ala. 621.
We have now stated the legal principles which bear on the question of defendant’s liability. It dates, not from the
Many charges of the court, given and refused, assert principles not reconcilable with what we have said. We do not propose to criticise them all. Of the charges given, the sixth is liable to two interpretations, one of which is unsound. The phrase, “and that the deceased was unaware of his peril,” should be so changed as to read, “and that he discovered the deceased was unaware of his peril.” So changed, it could not mislead, and would be an accurate expression of the principle. Charge ten, given at the instance of plaintiff, should have been refused.
Of the charges asked by defendant and refused, the following assert correct legal principles, and should have been given, namely: 2, 4, 6, 12, 13, 23, 24, 25, 26, and 27.
Reversed and remanded.