51 So. 996 | Ala. | 1910
This action is predicated upon section 27, Code 1896, and is brought by the administratrix of the estate of Jackson R. Drake, deceased, against the Southern Railway Company, a corporation, to recover damages for the alleged wrongful killing of the plaintiff’s intestate. The record (page 14) shows that the issues were determined between the parties by the rendition of the verdict returned by the jury on the 11th
It is conceded that the intestate was a trespasser on the track of the defendant company at the time he was run upon by its train; and in view of this concession the case of the plaintiff may be considered in two phases, as presented by different counts of the complaint : First, it is alleged in one of the counts that the defendant’s agent or servant, after discovering the perilous condition of the intestate, was guilty of negligence which proximatelv caused the death of the intestate; and, secondly, in another count, or other counts, it is alleged that the agent or servant of the defendant, acting within the scope of his duties, Avillfully, wantonly, or intentionally caused the death of the intestate.
The train that ran upon the deceased was a passenger train, composed of an engine and three coaches; one of the coaches being a Pullman sleeper. The engine was equipped with an electric headlight, together with all modern appliances necessary to be used in the stopping of a train “in emergency,” and the coaches were also equipped with such necessary appliances. The engine was controlled by a competent engineer, and the headlight and stopping appliances were in good condition. The train had made a stop at the station on Nineteenth street, and was proceeding on its way, in a westerly course, through the corporate limits of the city of Bessemer. It was near the hour of 1 a. m. The train was moving at the rate of from 15 to 20 miles an hour, and the bell on the engine was ringing continuously. When
It was shown without conflict in the evidence that the intestate’s body was lying to the South of-the track, with head on the south rail and face turned up, when the engine ran upon it. It was further shown without conflict, by the testimony of the engineer, introduced by the plaintiff, that he (the engineer) discovered the object which proved to be intestate upon attaining a point within 150 feet of it; but that he did not realize or discover that -the object was a human being, or that any part of it was on the rail, until the engine was only about 30 feet from it; that, immediately upon discovering that the object was a man, he (the engineer) employed all the means at hand to stop the train and prevent it from running upon him — did all that was possible to stop train — but that, on account of the nearness of the engine to the object, the means employed proved futile, and the train, although it was stopped as quickly as possible under the circumstances, ran upon intestate’s body.
There was no evidence tending to show that the engineer was keeping a lookout just prior to the moment when he discovered the object, -on or near the track, 150 feet ahead of the engine; but there was evidence which tended to show that, if the engineer had been looking ahead, he might have discovered the object before his engine had approached within 300 feet of it. There was also evidence which tended to show that the engine might have been stopped within the space of 150 or within even that of 100 feet. “In every case involving negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on
Therefore, in the instant case, although it was the duty of the engineer to keep a lookout for persons using the crossing at Fourteenth street, and he may have also owed the duty to his passengers to keep a lookout for obstructions on the track, the plaintiff can take nothing in this action for the failure of the engineer to discharge such duties owed to others. Her intestate was a trespasser, and nothing was due him until the engineer discovered his perilous situation—Beach on Contr. Neg. (2d Ed.) § 203, and cases in note 5 to the text, amongst them being Bentley v. Georgia Pac. Ry. Co., 86 Ala. 484, 6 South. 37; Carrington v. Louisville & N. R. Co., 88 Ala. 472, 6 South. 910; Frazier v. South & N. A. R. Co., 81 Ala. 185, 1 South. 85, 60 Am. Rep. 185. See, also, B. R. L. & P. Co. v. Jones, 153 Ala. 157, 45 South. 177; C. of G.G Ry. Co. v. Foshee, 125 Ala. 199, 27 South. 1006; Montgomery’s Ex. v. A. G. S. R. R. Co., 97 Ala. 305, 12 South. 170.
In view of the foregoing consideration and authorities, the crucial point in the present case, in respect to the rightfulness or not of the trial court’s refusal to give the affirmative charge requested by the defendant, is whether the record discloses any evidence from which a reasonable inference might be drawn that the engineer discovered the perilous situation of the plaintiff’s intestate earlier than according to his testimony he did; for, as has been seen, the testimony without conflict, shows that the train could not have been stopped with
The foregoing is substantially the evidence bearing upon the point at issue. Manifestly Spain’s testimony presents no conflict with that of the engineer, to the •effect that he did not discover that the object on the track was a human being until he was distant 30 feet from it. And while the sentence in De Garnett’s testimony — “I think you could see a man in a couple of hundred feet and tell it was a man that is my best judgment” — if isolated, might seemingly authorize an inference that the engineer should have realized that the •object in front of him was a human being when he saw it 150 feet away, yet in our opinion such an inference would be a strained one indeed, considering the quoted ■sentence in connection with the whole of the witness’s testimony, and with the positive testimony of the engineer (plaintiff’s own witness) to the effect that he did not realize that the object was a human being until he was only 30 feet from it. Therefore to say, upon the proof 'disclosed by the record, that the engineer saw and realized that the object was a human being before lie reached the point 30 feet from it, and, consequently, that he had actual knowledge of intestate’s peril before that point was reached, would, it seems to the court, be the indulgence of pure conjecture or speculation.
According to the authorities, “the test of responsibility is, did the striking of the intestate, by the engine, nccur after the engineer had seen — not might or ought
By the light of the foregoing considerations and authorities, and after due consideration of the entire evidence, the court is at the conclusion that the evidence will not support a reasonable inference of actionable negligence against the defendant or its engineer, nor a reasonable inference that the engineer, willfully, wantonly, or intentionally ran the engine upon the intestate. Consequently the defendant was entitled to the general affirmative charge as requested by it, and the court erred to the prejudice of the defendant in not giv
The judgment of the trial court will be reversed, and the cause remanded.
Reversed and remanded.
The foregoing opinion in this case was prepared by Justice Denson before his retirement as Associate Justice. Having been adopted, in consultation, it is now announced as the opinion of the court.