Louisville & N.R. Co. v. Thomason
Decision Date | 02 February 1911 |
Citation | 55 So. 115,171 Ala. 183 |
Parties | LOUISVILLE & N. R. CO. v. THOMASON. |
Court | Alabama Supreme Court |
Rehearing Denied May 5, 1911.
Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.
Action by John A. Thomason, administrator, against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Eyster & Eyster, for appellant.
Callahan & Harris, for appellee.
This is an action by the appellee against the appellant for damages on account of the death of plaintiff's intestate, C. L Seitz, which is claimed to have been caused by the negligence of the defendant, in the operation of its locomotive engine.
The general issue and contributory negligence were pleaded, and it is insisted that the plaintiff's intestate was not in the line of his duty, and was guilty of contributory negligence in going upon the track without looking and listening. It may be admitted that the plaintiff's intestate was guilty of contributory negligence, yet the question arises whether or not the employés of the defendant were guilty of negligence in failing to use the proper means to avoid the injury after the peril of the plaintiff's intestate was discovered.
The engineer testified that he was keeping a lookout, but did not see the intestate, because the said engineer was on the west side of the cab, and the intestate approached the track from the east side. He testified that, if intestate had approached from the west side, he could have seen him. The witness Dan Garth says of deceased: Percy Landers says: --and that he was walking slowly, looking at the train on the west, and would occasionally stoop to look under the west train, thus placing his body within range of the engine and tender backing on the east track. This evidence tends to show that intestate was on the west of the track on which the engine and tender were backing, in plain view of the engineer. The fireman, McClusky, testified that the engineer, in looking out of the window on the west side of the cab, could see the rail in 20 feet of the inside of the track.
The testimony is without conflict to the effect that the backing engine was moving only about as fast as a man could walk--about 3 or 4 miles an hour--and could have been stopped within 10 feet. While others place the intestate on the east side of the track, yet this raises a conflict, and it was open to the jury to find that the engineer saw the intestate in time to have stopped the engine. The fireman, who was looking out on the east side...
To continue reading
Request your trial