Georgia Pac. Ry. Co. v. O'Shields

• Decision Date: 28 May 1890
• Citation: 90 Ala. 29,8 So. 248
• Court: Alabama Supreme Court
• Parties: GEORGIA PAC. RY. CO. v. O'SHIELDS.

8 So. 248

90 Ala. 29

GEORGIA PAC. RY. CO. v. O'SHIELDS.

Supreme Court of Alabama

May 28, 1890

Appeal from city court of Anniston; W. F. JOHNSTON, Judge.

This action was brought by the appellee, Simpson O'Shields against the appellant, the Georgia Pacific Railway Company and sought to recover for damages done to his wagon and harness by an accident occurring on the defendant's road. All the facts are set forth at length in the opinion. There was judgment for the plaintiff, and the defendant appeals and assigns this judgment as error.

Knox & Bowie, for appellant.

McDonald & Williams, for appellee.

MCCLELLAN J.

Trial below was had without jury, and the exception reserved to the judgment imposes on this court the duty of reviewing the evidence without indulging any presumption in favor of the action of the court below thereon; and, if error be found in the conclusion reached by the trial court, it is further made our duty either to render such judgment as should have been rendered in the first instance, or to reverse and remand the cause, as we may "deem right." Acts 1888-89, pp 564, 569. The damages sustained were sustained by reason of defendant's cars colliding with plaintiff's wagon. A private road ran along defendant's right of way and on its roadbed and track at the point of collision. There was another road leading to the Woodstock furnaces, plaintiff's point of destination, which did not encroach on defendant's right of way or track, and which was equally as good as the route taken by plaintiff, though some longer; but it was shown that the latter was generally used by persons hauling to the furnaces. Plaintiff drove upon defendant's track without looking up or down it, and proceeded along the track without keeping any lookout for approaching trains, and this though he was slightly deaf, and should for that reason have been more diligent in the use of his organs of sight. Had he looked up the track when he drove on he would have seen defendant's train thereon within from one to two hundred yards of him. Had he maintained a diligent outlook after driving on the track, and while proceeding along it in the opposite direction, he would have seen five or six detached cars running of their own weight down a grade towards him, in time to have driven off the roadbed, and thus have avoided the collision. It is at once apparent from the facts stated that the plaintiff was a trespasser on the track of the defendant, and that he was guilty of negligence in going upon and along the track without keeping a lookout, so contributing to the injury as to afford to the defendant a complete defense to any charge of mere negligence on the part of its employes. Railroad Co. v. Black, ante, 246; Gothard v. Railroad Co., 67 Ala. 114. The judgment appealed from, therefore, must find its justification in...