125 Ala. 349 | Ala. | 1899
This is an action for damages for an alleged negligent killing of appellee’s intestate by a locomotive engine while being operated 'by tbe servants
To this count six pleas were filed by the defendant, the first being the general issue and the remaining five setting up contributory negligence on part of plaintiff’s intestate. On this state of the pleading issue being joined, a trial was had, resulting in a verdict for the plaintiff.
The charge of negligence in the complaint, is predicated upon acts of omission on the part of the defendant and consisted in the failure of defendant’s agents or employes in control and management of the locomotive to ring the bell or sound the whistle, and in the failure to have a headlight burning on its approach to the place of the accident. These are the only acts of negligence averred as a proximate cause of the injury. There is
While the said deceased had the right to go upon the defendant’s railroad track for the purpose of crossing the same on his -way to his home, and this right of -crossing -said track he had, regardless of the existence of a.pathway, without being a tresspasser in -the exercise •of such right, yet under the averments in the complaint this right was only a crossing right, to be exercised immediately after his ascertaining by his stopping sufficiently long to look and listen to see that he could proceed with safety to himself. He had no right to linger upon ¡the track or walk along tire same, or upon the right of way of defendant in dangerous proximity to the track, the doing of which "would constitute liim a tress-passer.- — L. & N. R. R. Co. v. Hairston, 97 Ala. 352; Stringer v. Ala. Mid. R. R. Co., 99 Ala. 397; Ensley R. R. Co. v. Chewning, 95 Ala. 24.
The burden of proof was upon the plaintiff to show that deceased was killed by 'defendant’s locomotive while the deceased was in tire exercise of this right of immediate crossing and without -delay, and that the -acts of negligence alleged in the complaint on the part of defendant were the proximate cause of tli-e injury. The fact that plaintiff’s intestate was himself an employe of defendant company, being employed -at work at its furnaces, was wholly immaterial under the issues in the case. Under the -averments in the complaint, his relation to the defendant company 'as an emp-loyé in another and different branch of 'its service, imposed no greater duty upon the defendan t at the -time and place mentioned than that due -to any other person exercising the legal right of crossing its tracks. We think that the evidence as disclosed by the record fails to show that the plaintiff has discharged the burden placed upon her bv the law in making out her case. Thqre is no testimony by an eye-witness to the occurrence, that the decedent was crossing the tracks at the time he was -struck by the loco
The plaintiff's witness, Dode Bloeton, expressly disclaims having seen decedent at all until after he had been struck and carried along the track by the engine. 1-Iis testimony throws no light on where he was when struck or what lie was doing when he was struck, Will Black, another witness for the plaintiff, testifies that he first saw him step on the track above the tool house toward the cinder dump aud walk along the track twenty feet further down than the path, where ’lie was struck bj" the engine. His testimony clearly shows that the decedent was a trespasser — Ensley Ry. Co. v. Chewning, 93 Ala. 24. Nelson Goree, another of plaintiff’s witnesses, testifies that when he first saw the decedent he, decedent, was Standing between the side-track and the main line in front of the tool house. He then saw him no more for two or three minutes, after which the engine came along past the tool house and struck him. The witness did not see him when he was struck. He saw him standing within three and one-half feet of the main track two or three minutes before the train came along, and saw him no more then until after he was killed. According to this witness, the decedent had been standing for two or threp minutes on the right of way between the two tracks and in dangerous proximity to them. This was not the exercise of his legal right of immediate crossing.— Stringer v. Ala. Mid. R. R. Co., 99 Ala. 397; L. & N. R. R. Co. v. Hairston, 97 Ala. 351.
Johnson and Perdue, witnesses for the defendant, each testify that the decedent stood in the center of the main line, from two to five or six minutes waiting for Perdue to finish unloading tools from a hand-car, and to go home with Mm. These are the only eye-witnesses to the accident^ except the witness, Mandy. This witness testifies that lie'was one hundred'yards from the
We decline to consider the assignments of error as to the action of the 'court upon demurrers to the complaint, for the reason that the record shows no judgment by the court upon these demurrers. What is stated in the. record shows' nothing more than a mere memorandum or recital by-the clerk, and not a consideration and adjudging by the court necessary 'to constitute a judgment. The rulings of the court on the admission of evidence raised by assignments of error numbered 2, 3, 1, 7, 9, 10, 11 and 13 are free from fault as the tetimony tended to proAre the allegations of the complaint.
Whether or not many persons Avorked at the furnaces, and crossed the track at the point where Hansford Avas killed, the time of the crossing, ’whether there Avas a 'headlight 'burning on the engine, or the bell was rung or Avhistle Avas -blown at the time of the injury, Avhether the Avitnesses had the opportunity of seeing and hearing the facts stated, Avere pertinent to the inquiry.- — L. & N. R. R. Co. v. Orr, 121 Ala. 489; M. & C. R. R. Co. v. Martin, 117 Ala. 367.
A Avitness may testify to the absence of a thing or the non-appearance of an event, if it is shown he Avas in a position to '¡See and hear the thing inquired about. — Tesney v. State, 77 Ala. 33; McVay v. State, 100 Ala. 110; A. G. S. R. R. Co. v. Linn, 103 Ala. 134.
The assignments of error numbered 5, 8 and 12 are based on objections to testimony calling for the custom of defendant ■'with reference to lighting the headlight of the^engine. This was immaterial, the question being the carrying of a head-light burning on the particular occasion.
The 6th assignment is based upon the admission of evidence against defendant’s objection tending to show
What we have said with reference to the issues and the evidence relevant to such issues is sufficient to dispose of other assignments of error based on exceptions to parts of the oral charge, as ivell as to refused- written charges requested by the defendant, without ’a more particular discussion of those exceptions.
For the errors indicated in the foregoing opinion the judgment of the court must be reversed and the cause remanded.