Louisville & N.R. Co. v. Thomason

Decision Date02 February 1911
Citation55 So. 115,171 Ala. 183
PartiesLOUISVILLE & N. R. CO. v. THOMASON.
CourtAlabama 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 &amp Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Eyster & Eyster, for appellant.

Callahan & Harris, for appellee.

SIMPSON J.

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: "When I first saw him, he was on the east side, and he crossed over to look to see if there was any engine. * * * He stooped so close to the track that the tender hit him. If he had stepped nearer the train going south, he would have been out of the way. * * * The train going south was west of the track that the engine was on." Percy Landers says: "He was walking sideways between the two tracks. There was a backing engine on the east side of this track, and there was a freight train on the track west of it, in motion, going south. * * * When I last saw him, before he was struck, he was between these two tracks, standing looking at the train"--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...

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