Copeland v. Central of Georgia Ry. Co.

• Court: Alabama Supreme Court
• Writing for the Court: SOMERVILLE, J.
• Citation: Copeland v. Central of Georgia Ry. Co., 213 Ala. 620, 105 So. 809 (Ala. 1925)
• Decision Date: 22 October 1925
• Docket Number: 4 Div. 181
• Parties: COPELAND v. CENTRAL OF GEORGIA RY. CO.

105 So. 809

213 Ala. 620

COPELAND v. CENTRAL OF GEORGIA RY. CO.

4 Div. 181

Supreme Court of Alabama

October 22, 1925

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Action for damages by Robert Copeland, as administrator of the estate of Isiah Copeland, deceased, against the Central of Georgia Railway Company. From a judgment for defendant plaintiff appeals. Affirmed.

Sollie & Sollie, of Ozark, for appellant.

G.L Comer & Son, of Eufaula, for appellee.

SOMERVILLE J.

We agree with the views of counsel for appellant as to the facts that were proven and the inferences that might have been reasonably drawn therefrom by the jury, with a single exception.

Counsel's argument, and indeed their theory of defendant's liability, is based upon the assumption that plaintiff's intestate was walking on the track approaching defendant's train, and therefore in plain view of the engineer, at or immediately before the time he was injured. If the evidence showed, directly or by reasonable inference that such was the case, we would agree with counsel's insistence that the question of liability was for the jury and that its withdrawal from the jury by giving the general affirmative charge for defendant was clearly erroneous.

We have sifted the evidence in vain to find a single statement by any witness that the intestate was in fact on the track in front of the engine at or immediately before the time he was injured; nor is there anything in the evidence from which that fact could be inferred, excepting only the circumstance that he was on the track when the train started towards him from about 200 yards away, and that he was walking towards the train.

Plaintiff's witness Slater testified that when he first saw intestate "he was running out from under the train."

The evidence shows without dispute that intestate's left arm was cut off by the wheels of the cars, no other injury appearing; except that one witness stated that there was a hole behind the shoulder.

We judicially know, as every intelligent person must know, that a person standing on the track in front of an approaching train of cars would, when struck, be probably injured in some other way than by the cutting off of an arm by the wheels of the cars. Ordinarily, his legs, or one of them, would be broken or badly bruised, and ordinarily, also, he would be thrown from the track. From the character of his injury it cannot be inferred that the engine struck him.

While the evidence showed that the engineer was looking ahead down the track before, or at about the time, his train was set in motion, and that intestate was then in plain view on the track ahead, thus authorizing the inference that he was then seen by the engineer (So. Ry. Co. v. Bush, 122 Ala 470, 26 So. 168), yet there is nothing to show that after that time the engineer was looking down the track; and hence there is no support for the inference that he saw intestate at all after the train was set in motion. All of the cases cited by counsel for appellant predicate liability strictly upon the proposition that the intestate was on the track at or immediately before his injury, and that the engineer was then looking down the track ahead...