Illinois Cent. R. Co. v. Martin

• Decision Date: 22 October 1925
• Docket Number: 6 Div. 442
• Citation: 213 Ala. 617,105 So. 805
• Parties: ILLINOIS CENT. R. CO. v. MARTIN.
• Court: Alabama Supreme Court

105 So. 805

213 Ala. 617

ILLINOIS CENT. R. CO. v. MARTIN.

6 Div. 442

Supreme Court of Alabama

October 22, 1925

Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.

Action for damages for personal injuries by Hettie Martin against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Percy Benners & Burr and Salem Ford, all of Birmingham, and W.C Davis, of Jasper, for appellant.

Gray &amp Powell, of Jasper, for appellee.

BOULDIN J.

The suit is to recover damages for personal injuries. The complaint counts upon wanton injury, and upon negligence after discovery of peril.

The plaintiff was admittedly a trespasser, using defendant's tracks as a walkway. Plaintiff's evidence tended to show that the place of the accident, within the corporate limits of the town of Dora, was at the time in such frequent, continuous use as a roadway by persons in such numbers that some person was likely to be in an exposed position upon the track and liable to injury by running trains at that hour at a high rate of speed without due precautions; that this use of the tracks had been so long continued that the trainmen accustomed to operate trains were presumed to know of these conditions. It does not seem to be controverted that the engineer and fireman operating the locomotive which caused the injury were informed of the conditions.

The evidence tended further to show that plaintiff was going in the same direction, with her back toward the approaching train; that for some distance she had walked in a pathway in common use between the main line and sidetrack, then turned diagonally onto the main line in front of the train, had crossed to the outer end of the cross-ties, and taken a few steps thereon when she was struck by the locomotive. The location of the path between the tracks under plaintiff's evidence was so near the main line that a woman walking therein was dangerously near a swiftly passing train. There was evidence that no obstruction prevented the engineer or fireman from seeing the plaintiff a sufficient distance to conserve her safety. The train was the Seminole Limited, a fast passenger train, making no stop at Dora. Plaintiff's evidence was to the effect it was going at the usual speed of fast passenger trains. Evidence for defendant gives the speed at 25 to 30 miles per hour.

Plaintiff testified that she heard no bell or whistle, and had no knowledge of the approach of the train until she felt the concussion of the air as the locomotive came upon her; that she tried to jump from the end of the ties, and was struck in the back on the left side; that another train was on the sidetrack, its bell ringing, and otherwise making noise.

The engineer testified he was in his place keeping a lookout at the time; that the engine was so equipped he could perform his other duties and maintain a lookout; that he did not see plaintiff, and had no knowledge any one was struck until later so informed; that signals were given for nearby road crossings, and the bell was ringing at the time; that a curve in the road near the point of the accident would obstruct his view; and the fireman could better see the track at that place. The fireman testified he was keeping a lookout; saw no person; and knew nothing of the accident until later. Another witness for defendant testified the fireman was looking ahead. This witness further testified that he saw plaintiff coming up between the tracks; that when she turned onto the main line she was 150 to 200 feet ahead of the engine; that she crossed over the track, and continued alongside the same; that as the engine passed she stepped nearer the track and was struck. It was in the daytime.

One of the precautions or duties imposed upon trainmen in passing a point known by them to be in such continuous use as a passway by pedestrians that some one is likely to be in a position of danger is to keep a lookout. If a curve in the track cuts off a proper lookout by the engineer, the duty devolves upon the fireman. If obstructions interfere, other precautions, such as reducing speed or giving warning signals, should be taken. The duty of keeping a lookout under such conditions applies to trespassers. To run at a high rate of speed through such zone without keeping a lookout may evidence such conscious disregard of duty in the face of known danger to life as that the jury may infer wantonness.

Under the evidence above outlined, if the presence of the plaintiff dangerously near or on the track was never discovered by either the engineer or fireman, it became a question for the jury whether a proper lookout was being kept, notwithstanding their testimony. The case was therefore one for the jury upon the issue of wantonness in maintaining a high speed through a place of known danger without keeping a lookout. On the other hand, if such lookout was being kept, the evidence would support an inference that the presence of plaintiff was discovered by one or both the trainmen. This brings to view the question of wanton injury thereafter, as well as that of negligence after discovery of peril. The...