Southern Railway Co. v. Stewart

45 So. 510 | Ala. | 1907

DOWDELL, J.

— The second count of the complaint was not subject to the demurrer interposed by the defendant. In cases of this character it has been frequently decided by this court that, after stating facts showing a duty, very general averments of negligence are held sufficient on demurrer to the complaint. — L. & N. R. R. Co. v. Marbury Tnunber Co., 125 Ala. 237, 28 South. 438, 50 L. R. A. 620; Central of Ga. Ry. Co. v. Foshee, 125 Ala. 199, 27 South. 1006. The negligence relied on in the second and third counts of the complaint Avas negligence of the defendant’s servant or servants after discovery of the peril of the plaintiff’s intestate. While contributory negligence on the part of the person injured is pleadable as a defense to such complaint, yet, in order to make a good plea, it must be shoAvn that the contributory negligence relied on Avas the negligent act or omission of the injured party Avith a knowledge of the then present and impending peril.— Johnson v. Birmingham, R., L. & P. Co., 149 Ala. 529, 43 South. 33; Duncan v. St. L., etc., Ry. Co., 152 Ala. 118, 44 South. 418; L. & N. R. R. Co. v. Broton, 121 Ala. 221, 25 South. 609. In this respect neither of the pleas to the second and third counts of the complaint Avas sufficient. These pleas did nothing more than to set up a condition that existed prior to the discovery by defendant’s servants of the deceased peril. The fact that the deceased Avas á trespasser and remained on the track until he Avas run over and killed, Avithout more, is no an-sAver to a charge of negligence on the part of the defendant after discoA’-ery of the peril of the deceased.

The case Avas tried alone on the testimony of plaintiff’s Avitnesses. The defendant introduced no evidence. The burden Avas upon the. plaintiff to make out her case, and until she made a prima facie case no duty to offer evidence rested on the defendant. The failure or refusal of the. defendant to put its engineer or conductor on the stand as a Avitness in its behalf could not be considered by the jurw for the purpose of making out a prima facie case against the defendant. It is conceded that the deceased was a trespasser. It is well settled in this state that the law imposes no duty upon railroad companies in the operation of their trains to keep a lookout for trespassers; and hence for an injury to such trespassers no recovery could be had for anything less than willful or wanton misconduct, unless it be for negligence after discovery of peril.

There was no evidence of the speed of the train, none as to the position of the engineer on the train, none that the train could have been stopped any quicker than it was stopped, and none that the deceased could have been seen by the engineer in time to have stopped. The facts that the track at the place of the injury was straight for a mile and a half and that the day was bright and clear alone are not sufficient to authorize a reasonable inference that the engineer in fact discovered the deceased in time to have avoided the injury. The evidence shows that the deceased was lying down on the track between the rails, and there is no evidence that the engineer was looking forward at a time and place when the deceased could have been discovered in time to have stopped the train and avoided the accident, and it is a matter of common knowledge that engineers, in the operation of engines, have other duties to perform besides that of looking out, and, for aught that can be said, the engineer was at the tim'e engaged in performance of some other of such duties. It would be an unwarranted speculation to leave it to the jury to say whether or not the engineer was at the time looking forward and did discover, or could have discovered, the deceased on the track in time to have avoided the injury by the exercise of due care.

' On the plaintiff’s evidence, this being all that was introduced in the case, and in our judgment insufficient to make a prima facie case, the court should have given the general affirmative charge requested by the defendant. — See Sou. Ry. Co. v. Samuel Gullatt, 150 Ala. 318, 43 South. 577, and other cases cited in brief of appellant’s counsel.

For the error pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Simpson and Denson, JJ., concur.