Memphis & C.R. Co. v. Womack

• Decision Date: 10 July 1888
• Citation: 4 So. 618,84 Ala. 149
• Court: Alabama Supreme Court
• Parties: MEMPHIS & C. R. CO. v. WOMACK.

4 So. 618

84 Ala. 149

MEMPHIS & C. R. CO. v. WOMACK.

Supreme Court of Alabama

July 10, 1888

Appeal from circuit court, Jackson county; H. C. SPEAKE, Judge.

This suit was brought against the railroad by Martha Compton, as administratrix of her husband, Charles Compton, who was run over and killed by a train of cars on the defendant's road. During the pendency of the suit, the plaintiff married one Womack, and, on suggestion of this fact to the court, the suit was ordered to proceed in the name of Martha Womack administratrix, etc. Defendant set up by plea this marriage as a bar to the continuance of the suit, to which plea a demurrer was sustained. One of plaintiff's witnesses testified that, after the killing and stoppage of the train she overheard one of the train-men say, "We have run over a man, and killed him dead as hell." The court excluded any evidence of the verdict of the coroner's jury, that the deceased was accidentally run over by the defendant's train of cars.

Humes, Walker, Sheffey & Gordon, for appellant.

Brown, Brickell & Hunt, for appellee.

CLOPTON J.

The declaration of one of the train-men, testified to by the witness Larkin, should have been excluded, on the authority of the following cases: Railroad Co. v. Hawk, 72 Ala. 112; Tanner v. Railroad Co., 60 Ala. 621. The declaration was not sufficiently connected with the main fact, or contemporaneous therewith, to constitute a part of the res gest . Without serving to explain or elucidate its character, it was merely a heartless narration of a transaction really and substantially past, only tending to prejudice the minds of the jury, and which should not and does not bind the defendant.

It is the settled doctrine in this state, supported by the great weight of authority in England and America, that ordinarily the right of way of a railroad company is its exclusive property. Its free and unobstructed use is essential to the transaction of the business of the company in transporting freight and passengers, and to the safety of its trains. Mere acquiescence in the use of such right of way does not confer on the public a right to use it, nor create any obligation to look out for persons using it, other than the general duty of lookout for obstructions. In the absence of law making such acts punishable, railway companies are powerless to prevent such use of their tracks. Under the conditions in which they are situated, physical prevention is impracticable, and acquiescence is morally compulsory. Mere acquiescence, under such circumstances, is not permission. Coal Co. v. Davis, 79 Ala. 308; Frazer v. Railroad Co., 81 Ala. 185, 1 South. Rep. 85; Tanner v. Railroad Co., supra. The evidence of the custom of persons to walk on the track was calculated to mislead the jury by inducing the inference that the defendant owed deceased a greater and other duty, at the place of the accident, because of such custom, than to intruders at other places not so used. It should have been excluded.

As the judgment must be reversed, and only two inquiries are involved, a consideration and discussion in detail of the charges given and refused by the court would be an unnecessary and tedious extension of this opinion. It will better suffice the purposes of another trial, and a correct determination of the case, to state the principles of law which are applicable and should govern its decision, on the undisputed facts, and the tendencies of the evidence as to any facts controverted. The following facts cannot be disputed: The deceased left Larkinsville about sundown intoxicated, to go home, about half a mile distant. There was a dirt road running parallel with the railroad. The deceased, the last time he was seen alive, was walking on the railroad track, and was killed about night-fall at the entrance of what is called the "Little Cut," where there is no public crossing. He was clearly a trespasser on the right of way of the defendant. Persons in charge of a train are not required to anticipate wrongful intrusion on the track. They have a right to presume, and act on the presumption, that intelligent beings will leave it free and unobstructed for passing trains. The law does not impose any obligation to use special precaution against possible, but unanticipated, injuries to trespassers. A railroad company does not owe to an intruder the duty to keep a vigilant lookout for obstructions when such lookout is only rendered necessary by his wrongful act. As there is no duty to anticipate wrongful acts in others, the omission to keep a vigilant lookout for trespassers is not a failure in duty to such wrong-doers. Any person who enters and walks at places where the public have no right, unless by the invitation or license of the company, is a trespasser, and assumes the peril of the position in which he has voluntarily placed himself. These views are not intended to antagonize or impair the rule that a failure to keep a lookout when a train of cars is being moved within the limits of a town or city, or passing a public crossing, fixes the charge of negligence, as held in Railroad Co. v. Shearer, 58 Ala. 672; Railroad Co. v. Sullivan, 59 Ala. 272; and Railroad Co. v. Donovan, 84 Ala., ante, 142. Under the circumstances of this case, the intoxication of the deceased does not exempt him from the consequences of his contributory negligence. His...