Southern Ry. Co. v. Gullatt

43 So. 577 | Ala. | 1907

.AND EE SON, J.

The intestate Avas a trespasser on the defendant’s track at the time he Avas killed, whether standing, walking, or lying down, and Avas at a point on the line AAdiere the defendant OAved him no duty to keep a lookout, but owed him only the duty of using all reasonable efforts to prevent the injury after discovering his peril on the.track and after becoming aAvare that he could not or Avould not extricate himself therefrom.—Southern Ry. Co. v. Bush, 122 Ala. 470, 26 South. 168; Black’s Case, 89 Ala. 313, 8 South. 246; Moorer’s Case, 116 Ala. 642, 22 South. 900. There Avas no proof in the case at bar that the intestate’s peril Avas discoAmred in time to stop the train before striking him; nor Avere the-facts sufficient to create an inference that .would justify the refusal of the general charge for the defendant. There Avas no evidence that those in charge of the engine were looking forAvard at the time, or that, if they were,, and could have seen ihe intestate, he was lying down and thus in a perilous position.

It is insisted that there was an inference that he was lying doAAui, else the Avitness Kenemar would have seen him, and that the engineer and fireman must have seen him Avhen they blew the whistle 80 or 90 yards from Avhere he Avas struck by the train. Conceding that these-facts create an inference, which we do not decide, that he was seen 80 or 90 yards from where he was struck, and that he was lying doAvn, there was no proof that the train could have been stopped in time to have saved' him. This court cannot take judicial knowledge of the fact that a train going at the rate of 20 or 25 miles an-hour could have stopped within 80 or 90 yards.- Therefore the general charge, requested by the defendant, should have been given. It is true we may, as a matter of common knowledge, know that, if the trainmen made the proper efforts to check the train when the alarm was given by the blowing of the whistle, the speed would have been reduced; but, if he ivas not lying on the track when discovered, they had the right to assume that he would get off, and were under no duty to attempt to stop the train until they discovered that he could not or would not get off. On the other hand, if he Avas lying dOAvn on the track, nothing short of stopping the train before it reached him could have saved him. Moreover, there is nothing to show that they did not attempt to stop the train as soon as they blew the whistle.—Rush’s Case, supra; Nave v. A. G. S. R. R., 96 Ala. 264, 11 South. 391.

It is insisted by counsel for appellee that the defendant’s failure to put the engineer Anderson on the stand, who was present at the trial, and examine him, “reinforces the inference that the intestate was .on the track and that his death could have (been avoided,” and cites the dissenting opinion of Tyson, J., in the case of Brock v. State, 123 Ala. 24, 26 South. 329, and authorities elseAvhere. The question considered in this case has no application to the case at bar, and it is néedless for us to comment on the principle involved. We merely add that the failure to examine the AVitness in the case at bar could not prevent the general charge for the defendant, if the plaintiff-had failed to make out his case. When the plaintiff, upon Avhom lies the burden ol proof, fails to make out his case, it is not incumbent upon the defendant to introduce any evidence, and his failure to do so should not create inferences for the purpose of making' out a case for the plaintiff after he had failed to make out one for himself.

Reversed and remanded.

Tyson, C. J., and Doavdell and McClellan, JJ., concur.