| Ala. | Nov 7, 1915
Conceding that the public use of defendant’s track as a passageway by trespassing pedestrians was such as to impose upon its servants the duty of observing due care not to take them unawares and injure them, at the point where the intestate’s body was found, it is clear, under the evidence before us, that in the operation of this train the engineman violated no duty in this regard, since the engineer was keeping a lookout and was running his train at a speed not exceeding 10 or 12 miles an hour, and this at a place where its approach could be easily seen and heard, and where pedestrians could easily leave the track.—Carlisle v. A. G. S. R. R. Co., 166 Ala. 591" court="Ala." date_filed="1909-04-14" href="https://app.midpage.ai/document/carlisle-v-alabama-great-southern-railway-7364969?utm_source=webapp" opinion_id="7364969">166 Ala. 591, 601, 52 South. 341. The trial judge properly instructed the jury that unless the trainmen actually saw Mrs. Shirley on the track, and in time to avoid injuring her, the plaintiff could not recover.
It is, however, insisted for the appellant: (1) That the evidence does not show nor permit any reasonable
Whatever might be said for and against the first and thir'd contentions as above noted, it seems entirely clear that the defendant’s second contention is well founded.
In the first place, there is nothing in the evidence that can be said to even suggest that the intestate was on the track in front of this train, or that she even at any time got as far as the track. The statement of the fireman, shortly after the engine passed her body, that “we have hit a woman,” conceding its admissibility as part of the res gestee, is in itself entirely consistent with the theory that, if the intestate was struck by the engine at all, she was struck from near the left side of the track; and, taken in connection with his testimony, it is certain that he did not see her struck, and only inferred that she was struck because he suddenly saw her body lying on the ground near the track. At any rate, the quoted statement cannot support any rational inference that he saw her walking or standing or sitting on or near the track. The proof is that she was found as she was first seen, lying prone upon the ground. In the absence of evidence to the contrary, the burden of proof in this respect being upon the plaintiff, it must be presumed
The only rational inference that can be drawn from all the evidence is that the intestate was lying upon the ground near the track when the train approached, and hence escaped observation by the conductor and engineer looking out on the opposite side of the cab.
It is to be noted that in those cases, where it has been held that notwithstanding the engineman’s testimony that they were keeping a lookout at the time of striking the injured person, and did not see him on or near the track in front of the engine, it was a question for the jury whether or not in fact they did see him, the rulings rest upon the assumption that some of the evidence showed that the injured person was in fact upon the bracio, and hence they must have seen him in spite of their denials.
In Carlisle v. A. G. S. R. R. Co., supra, in noting this very distinction, the court said: “It is to be observed that-in the Bush Case, 122 Ala. 470" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/southern-railway-co-v-bush-6518109?utm_source=webapp" opinion_id="6518109">122 Ala. 470, 26 South. 168, the language quoted was used in view of the undisputed fact, and in the Shelton Case, 136 Ala. 191" court="Ala." date_filed="1902-11-15" href="https://app.midpage.ai/document/southern-railway-co-v-shelton-6519862?utm_source=webapp" opinion_id="6519862">136 Ala. 191, 34 South. 194, in view of the fact expressly assumed for the argument, that the deceased was upon the track in advance of the engine and was destroyed by the engine. (Italics ours.) In the case under consideration the fact that the track was straight and the engine-men keeping a lookout ahead, as far as consistent
We can discern, in the present case, no valid theory upon which the jury could be authorized to infer that these enginemen saw this interstate in a place of danger, and then wantonly or intentioally or without heed ran upon her.
In L. & N. R. R. Co. v. Calvert, 172 Ala. 597, 55 South. 812, the plaintiff’s intestate was killed in a buggy at a public crossing, and it was shown that the enginemen were keeping a lookout down the track, but also for persons approaching the crossing; and it was held a question for the jury to determine whether the engineer, who was looking ahead, discovered the horse and buggy approaching the crossing and before the collision. The Galvert Case is therefore not an authority for guidance here.
We think that upon this issue the defendant was entitled to the general affirmative charge, and that its refusal was error.
Independently of this, upon a consideration of the defendant’s motion for a new trial, we are impelled to the conclusion that the overwhelming weight of the evidence shows that the intestate was not struck by the train at all, but that she Avas scratched and bruised Avhile wandering about in the night or early morning barefooted, in her night clothes, and in a half demented condition, and that she either lay down or fell down exhausted, near the track where she was found, long-before this train passed by. It seems incredible that she could have approached the track at this hour in a populous neighborhood, where great numbers of peo
Reversed and remanded.