Louisville & N.R. Co. v. Jones

• Decision Date: 07 November 1914
• Docket Number: 716
• Citation: 191 Ala. 484,67 So. 691
• Parties: LOUISVILLE & N.R. CO. v. JONES.
• Court: Alabama Supreme Court

67 So. 691

191 Ala. 484

LOUISVILLE & N.R. CO. v. JONES.

No. 716

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by Ollie Jones, as administrator, against the Louisville &amp Nashville Railroad Company for damages for the death of his intestate. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Eyster & Eyster, of New Decatur, for appellant.

Callahan & Harris, of Decatur, for appellee.

MAYFIELD J.

Appellee's intestate, an aged man, estimated to be between 60 and 80 years of age, was walking along appellant's roadbed between two parallel tracks, and just before a switch engine (moving in the same direction) was opposite him, he stepped upon the track in front of the engine and was killed. Plaintiff's evidence was in conflict as to how far the engine was from deceased when he stepped upon the track placing it at distances varying from 50 or 60 yards to 15 or 30 feet. Plaintiff's evidence was also in conflict as to the speed of the train, it being variously estimated to have been from 15 to 25 miles per hour. The evidence was without dispute that deceased was a trespasser when he was killed. It was also without dispute that neither the engineer nor the fireman saw the deceased on the track or knew of his dangerous proximity to the track, until the engine had struck him, though they did know of his walking down the roadbed between the two tracks; but it was also without dispute that deceased was in no danger from a passing engine while so walking, and that if he had not stepped on the track on which the engine was moving, he would not have been stricken by the passing engine. There was on the engine a third man, a servant of the defendant, described as a lookout, whose business it was to look out for persons and objects on the track in front of the engine. There was no direct evidence that this lookout saw the deceased on the track, in time to prevent hitting him, though there was possibly sufficient evidence to carry the question of his negligence to the jury, in failing to notify the engineer or the fireman of deceased's peril. That is to say, there was evidence from which the jury might infer that the lookout saw the deceased in time to give the warning and prevent the injury. The evidence is without dispute, however, that he did not give the warning until the engine had stricken the deceased.

The case was tried on the general issue as to one count only. This count declared on subsequent negligence--that is, negligence after the discovery of intestate's peril. The specific negligence alleged was as follows:

"That the said agents or servants of the defendant so, as aforesaid, in charge of said engine discovered the peril of her said intestate on said track in time to have avoided killing him; and, after discovering the perilous situation of her said intestate, the said agents or servants of the defendant in charge of said engine so negligently managed or operated the same as that, as a proximate consequence of such negligence, plaintiff's intestate was killed."

It will be observed that the specific negligence alleged was the operation or management of the engine after the discovery of intestate's peril. There was therefore an entire failure of proof as to the only negligence which was alleged. As before stated, the only possible negligence proven was the failure of the lookout to notify the engineer or the fireman of intestate's peril. If it could be said that any negligence was charged against the lookout, or that he had charge or control of the engine, it was not the negligence of his failure to notify the engineer or the fireman. There was no allegation of the only negligence which the proof tended to show, nor was there any general allegation of negligence which could be supported by the proof. For this reason the general affirmative charge should have been given for the defendant.

The trial court also fell into error in its oral charge as to the burden of proof in this case, and as to the effect and application of the statute (Code, § 5476). The trial court, among other things, charged the jury as follows:

"Gentlemen of the jury, our lawmakers have enacted a section of the Code, which prescribed whenever a person is injured or killed by a railroad company along the tracks, as has been detailed in this case, then the burden is not upon the plaintiff to show that the employés were negligent, but, gentlemen of the jury, whenever they establish the fact that this person was killed, the burden is upon the railroad company to show that it was not negligent."

"Our lawmakers have said whenever the evidence discloses that fact, and you are satisfied that the injury has occurred, or that death has resulted, that the burden is not upon the plaintiff to prove that defendant's servants, or agents, or employés are negligent, but the burden is upon the defendant to show that the servants, agents, or employés of defendant were not negligent."

Each of these two propositions was erroneous, as applied to the undisputed facts of this case. The intestate was a trespasser, and was therefore himself guilty of negligence. The complaint here admitted that the intestate was a trespasser, and the only theory of the count was that defendant's negligence followed the intestate's. The statute referred to by the court, therefore, does not place the burden of proof on the defendant to show that the intestate's negligence was subsequent to that of defendant's agents or servants. The burden of proof, in this case, was clearly on the plaintiff to show that the negligence of the defendant was subsequent to that of the intestate, which was admitted by the count and which the proof showed without conflict. It could be conceded that the defendant was guilty of negligence in this case, and yet it would not be liable. The only disputed issue on the trial was as to whether there was any negligence after the discovery of plaintiff's intestate's peril. The count alleged that there was; and as to this, of...