Louisville & N.R. Co. v. Rayburn

• Decision Date: 16 November 1916
• Docket Number: 8 Div. 924
• Citation: 73 So. 461,198 Ala. 191
• Parties: LOUISVILLE & N.R. CO. v. RAYBURN.
• Court: Alabama Supreme Court

73 So. 461

198 Ala. 191

LOUISVILLE & N.R. CO. v. RAYBURN.

8 Div. 924

Supreme Court of Alabama

November 16, 1916

Rehearing Denied Dec. 30, 1916

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

Action by Frank Rayburn against the Louisville & Nashville Railroad Company for damages for the death of his intestate. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449 Affirmed.

Eyster & Eyster, of New Decatur, for appellant.

W.J Boykin, of Gadsden, and Tidwell & Sample, of New Decatur, for appellee.

McCLELLAN J.

This is the second appeal in this cause. 192 Ala. 494, 68 So. 356. The issues submitted to the jury on the last trial were those resulting from the averments of counts 1, 2, and 3, all of which ascribed intestate's death to simple negligence on the part of employés of the defendant, appellant, after his perilous situation became known to the operatives of the train. On the former appeal the reversal was based upon the entire absence of evidence to support the allegations ascribing intestate's death to willful or wanton wrong or to simple negligence after intestate's peril was known to the defendant's employés operating the train. Upon the record now before this court must the review be had.

Undoubtedly the intestate, then a trespasser upon the track of the defendant (L. & N.R.R. Co. v. Rayburn, 192 Ala. 494,

68 So. 356), was killed by a train operated by servants of the defendant. Just before and at the time of his injury he was either asleep or stupefied with intoxicants, and his body was in a somewhat crouching posture on the end of the ties next to the west rail, the witness Strickland testifying that from his viewpoint a mile or more away down the track the object (which he observed, but could not then distinguish) was "on the end of the tie and on the west rail." There was other evidence to the effect that Rayburn's body was not on or over the west rail. What his particular posture and situation really were was a question for the jury. It does not appear that he moved at any time.

The chief issues on the trial were: At what distance from Rayburn the engineer, who was looking ahead along the track, first discovered the object on the track; at what distance from Rayburn the engineer first discovered that the object was a human being, at which moment the duty first arose to warn the man, if the emergency permitted that effort, and to avert the negligent injury of the thus imperiled man; and whether the engineer, after becoming aware that a human being was imperiled, promptly and in proper order observed the diligence and care a skillful man in his situation should have employed to avert injury.

It is insisted for appellant that the general affirmative charge was its due, not only on some, but on all, of these issues, the burden to sustain which, at least prima facie, was on the plaintiff. The whole evidence bearing on the affirmative of these issues has been carefully considered. Our opinion is that to have given the affirmative charge for the defendant would have invaded the jury's province, would have resulted in withdrawing from the jury the consideration of evidence directly tending to sustain, to discharge, the burden of proof assumed by the plaintiff. While the defendant offered much testimony tending to the effect that the afternoon in question was cloudy, that it was drizzling rain, that at the point of the injury a fog, coming up from two ponds beside the track, hung so as to obscure, if not obstruct, the view of the engineer as his train moved from the north toward the point at which Rayburn was almost recumbent on or next to the west rail, yet there was testimony, by the witness Strickland, that was in direct conflict therewith. If the afternoon was not rainy, cloudy, and foggy, of course, it was for the jury to decide at what distance from Rayburn the engineer, who was looking ahead, saw Rayburn in a dangerous place on the track and at what distance he in fact was when he discovered that the object was a human being. The phase of the issue indicated could, under the evidence, only be determined by the jury.

The plaintiff introduced H.H. Parker as an expert locomotive engineer. We do not find in the record any objection to this witness' competency to testify as an expert. On redirect examination he testified that he had had "about five or six months' experience on passenger engines"; in conflict, it is true, with his previous testimony that he had had no experience as a passenger engineer, but the conflict thus instituted was a matter for the jury's decision. He testified that on a clear day an object on a straight track ahead should be seen at...