Bickerstaff v. Illinois Cent. R. Co.

• Citation: 97 So. 842,210 Ala. 280
• Decision Date: 08 November 1923
• Docket Number: 6 Div. 825.
• Parties: BICKERSTAFF v. ILLINOIS CENT. R. CO.
• Court: Supreme Court of Alabama

97 So. 842

210 Ala. 280

BICKERSTAFF v. ILLINOIS CENT. R. CO.

6 Div. 825.

Supreme Court of Alabama

November 8, 1923

Appeal from Circuit Court, Marion County; J. J. Curtis, Judge.

Action for damages by Robert Bickerstaff, as administrator of the estate of Linclon Bickerstaff, deceased, against the Illinois Central Railroad Company. From a judgment for defendant plaintiff appeals. Affirmed.

W. L Chenault, of Russellville, and E. B. Fite, of Hamilton, for appellant.

W. C Davis, of Jasper, and Percy, Benners & Burr, of Birmingham for appellee.

SOMERVILLE J.

The evidence has no tendency whatever to show that the engineer or fireman discovered the presence of the intestate on the track, or in dangerous proximity thereto, before he was struck by the train. His position on the end of the cross-ties, and the nature of his one wound on the head, render wholly untenable the theory that he was killed while on the track in front of the train, nor does defendant's answer to the second interrogatory make such a concession. Conceding, however, that he was struck while on the track, either between the rails or on the ends of the cross-ties, there is nothing to show that he ever was within the vision of the engineer who was keeping a lookout. For, so far as appears, intestate may have stepped suddenly on the track at the moment he was struck, or he may have stepped up against the side of the engine or of a car.

The evidence wholly failed to make out a case under either count of the complaint, and the trial judge properly gave the general affirmative charge for defendant. So. Ry. Co. v. Shirley, 189 Ala. 569, 574, 66 So. 511; Carlisle v. A. G. S. R., 166 Ala. 591, 52 So. 341; Northern Ala. R. R. Co. v. Henson, 98 So. 18.

We have examined the testimony offered by plaintiff as to the public use of the track at the point of collision, and it falls very far short of showing such a neighboring population and such frequency of use by the public as to charge the enginemen with notice that some one would probably be in an exposed position on the track and would probably be injured in the absence of due precautions in the operation of the train. But, even had the evidence been sufficient in that respect it does not appear that the train was negligently operated; that is, at a high and dangerous rate of speed, or without lookout or warning signals. Nor does the evidence bring intestate within the protection of the...