Central of Georgia Ry. Co. v. Lee, 7 Div. 192.
| Decision Date | 02 November 1933 |
| Docket Number | 7 Div. 192. |
| Citation | 227 Ala. 661,151 So. 840 |
| Parties | CENTRAL OF GEORGIA RY. CO. v. LEE. |
| Court | Alabama Supreme Court |
Rehearing Denied Jan. 18, 1934.
Appeal from Circuit Court, Shelby County; E. P. Gay, Judge.
Action under the Homicide Act by Lloyd Lee, as administratrix of the estate of Ed. Lee, deceased, against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
W. H Sadler, Jr., of Birmingham, for appellant.
W. W Wallace and L. H. Ellis, both of Columbiana, for appellee.
The action is under the Homicide Act (Code 1923, § 5696), based on alleged negligence after discovery of peril.
On former appeal (Central of Georgia Ry. Co. v. Lee, 225 Ala. 283, 142 So. 660), we held that singling out the evidence most favorable to plaintiff a jury case was presented, and the affirmative charge for defendant was properly refused; but that the great weight of the evidence disclosed such state of facts that any inference of negligence as charged would be a mere matter of conjecture and a new trial was awarded.
In view of a new trial, a discussion of the evidence in detail was withheld.
The present appeal presents the same issues.
Ed Lee, plaintiff's intestate, a trespasser on the track of defendant, was run over and killed by a locomotive, drawing a passenger train of four cars. Place, on or just off the east end of the railway bridge over Coosa river, about one mile west of Childersburg. Time, about 6:15 p. m., just after dark.
Evidence of several witnesses discloses that deceased was in Childersburg late that afternoon, in a more or less drunken condition. His home was a few hundred yards west of the bridge. He was seen by more than one witness walking west, toward the bridge, at one time sitting on the track, and last seen before the accident, walking on the track about one hundred yards from the bridge. According to estimates of witnesses, he reached the bridge about the time the train was due from the west.
Several witnesses say he was staggering as he walked. When last seen, the witness says, he was reeling from side to side of the track.
It is a fair inference that, in a drunken condition, he was going home, and purposed to walk across the bridge.
The train did not stop nor reduce its speed. The conductor testifies that hearing a knocking under the passenger coach at that point, he made a hasty examination at Childersburg, suspecting a dislocated belt connected with the lighting apparatus under the coach; that the belt was found intact, and a further examination was made at Sylacauga when blood stains on the engine trucks, and other signs, were discovered indicating a man had been killed. Communication was had with the crew of a west-bound train, which arrived at the scene about 8 o'clock. A search disclosed the train had passed full length over the body, mangling, and leaving blood stains, fragments of the body, and clothing strewn along the track more than a hundred yards.
One of the strongly contested issues is whether the deceased was out on the bridge when struck, or just at the end of the bridge.
The materiality of this inquiry grows out of the apparent danger, if seen by the engineer, in one or the other positions.
The structure of the bridge, under some evidence, would render the position of one walking thereon perilous from the moment of discovery; while at the end of the bridge, the track was on a high fill, but wide enough for one to get out of the wake of the train.
The greater number of witnesses for plaintiff and defendant, who made examination that night and next morning, state the first blood stains or other sign were found on the first cross-tie, or second or third cross-tie off the east end of the bridge. One witness for plaintiff testifies to blood stain found some twenty feet out on the bridge, and a second witness to blood stain near the end of the bridge.
Another circumstance relied upon is evidence that one...
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