Southern Ry. Co. v. Gullatt

• Decision Date: 18 January 1909
• Citation: 158 Ala. 502,48 So. 472
• Parties: SOUTHERN RY. CO. v. GULLATT.
• Court: Alabama Supreme Court

48 So. 472

158 Ala. 502

SOUTHERN RY. CO. v. GULLATT.

Supreme Court of Alabama

January 18, 1909

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Action by Samuel Gullatt, as administrator, against the Southern Railway Company. From a judgment for plaintiff, defendant appealed. Reversed and remanded.

The following charges were refused to the defendant: (1) and (2) Affirmative charges as to the second count. "(3) No inference can be drawn prejudicial to the defense in this case by reason of the fact that the engineer was not introduced and examined as a witness in the cause by the defendant. (4) The jury would not be authorized to infer from all the testimony in this case, that the engineer, when he blew the whistle, as is shown by the testimony of one of the witnesses, that he had then discovered the deceased upon the track and had perceived his peril."

The following charges were given at the instance of the plaintiff: "(1) The jury has the right to draw such inference from the facts in the case proven to their reasonable satisfaction as they believe to be fair and reasonable and consistent with the evidence in the case. (2) If the jury are reasonably satisfied from the evidence that deceased, E. E. Kirby, at or about the time and place named in the complaint, was lying down on the track of the railroad, and was then and there in a position of peril from defendant's approaching train on said railroad, and that the agent and servants of defendant then and there in control and management of said train saw the peril of said Kirby, and after the discovery of said peril, the said agents and servants of defendant negligently ran such train of cars on said Kirby and killed him, and that said negligence of defendant's agents and servants was proximately the cause of the death of plaintiff's intestate, then the jury must find for the plaintiff."

Humes &amp Speake, for appellant.

Bilbro & Moody, for appellee.

McCLELLAN J.

The report of this case on former appeal may be found in 150 Ala 318, 43 So. 577. The second count of the complaint, upon which the trial was had, ascribes the negligence to liability to the operatives of the train by which Kirby was killed, in that, after discovery of his peril, proper care and diligence was not exercised to avert the injury to him. The particular averment is "that the agents and servants of the defendant then and there in the control and management of said train saw the peril of the plaintiff's intestate and after the discovery of said peril" the train was negligently run upon intestate, killing him.

The predicate to the duty alleged in the count to have been breached, to the proximately consequent injury of intestate, is knowledge of the peril of intestate by those in control of the defendant's train. Of course, to make out the case under the count, the averred fact of knowledge of the peril stated was absolutely essential. It is insisted that, on the trial after reversal, this testimony so far sustained the important averment and condition to the duty declared as to carry the prima facie case and to require the submission of the question to the determination of the jury, namely, that one Kennemar was sitting in a room of his house, near the railway; that he heard three or four short, shrill whistles, one right after the other; that he had lived near a railroad all his life, and knew the blasts that are made for cattle and things on the track; that he had often observed that kind of blowing for things on the track; that he at once ran from the room and across the porch, a distance of about 18 feet, to the edge of the porch, looked in the direction from which the train was coming, saw it emerge from a skirt of woods about 89 yards from where blood from the intestate appeared on the track, and then looked along the track in front of the train, but could not see anything; and that, had a man been standing upon the track, he could have seen him.

We have considered with great care the question indicated, and are not prepared to say that the trial court erred in the submission of the matter to the jury. The inference that the engineer saw intestate on the track, before an oncoming train, running 25 or 30 miles an hour, may be reasonably deduced from the fact, testified to by Kennemar, that the...