Southern Ry. Co. v. Gullatt
| Decision Date | 11 April 1907 |
| Citation | 43 So. 577,150 Ala. 318 |
| Parties | SOUTHERN RY. CO. v. GULLATT. |
| Court | Alabama Supreme Court |
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 appeals. Reversed and remanded.
This was an action for killing a person on defendant's right of way or track. Demurrers were interposed to the first count, and sustained. The third count was charged out by the court. The second count alleged that plaintiff's intestate was on the track and in a position of peril from the approaching train; that the agents and servants of defendant saw the peril of the intestate in time to have avoided the injury, but negligently ran the train over and against him, killing him. Issue was joined on the general issue and a plea setting up that the servants of the defendant in charge of the train did not discover that plaintiff's intestate was in a position of peril and that he was ignorant thereof, and would not or could not extricate himself therefrom in time to prevent the injury sustained.
Humes & Speake, for appellant.
Bilbro & Moody, for appellee.
The intestate was a trespasser on the defendant's track at the time he was killed, whether standing, walking, or lying down, and was at a point on the line where the defendant owed him no duty to keep a lookout, but owed him only the duty of using all reasonable efforts to prevent the injury after discovering his peril on the track and after becoming aware that he could not or would not extricate himself therefrom. Southern Ry. Co. v. Bush, 122 Ala. 470, 26 So. 168; Black's Case, 89 Ala. 313, 8 So. 246; Moorer's Case 116 Ala. 642, 22 So. 900. There was no proof in the case at bar that the intestate's peril was discovered in time to stop the train before striking him; nor were the facts sufficient to create an inference that would justify the refusal of the general charge for the defendant. There was no evidence that those in charge of the engine were looking forward at the time, or that, if they were, and could have seen the intestate, he was lying down and thus in a perilous position.
It is insisted that there was an inference that he was lying down else the witness Kenemar would have seen him, and that the engineer and fireman must have seen him when they blew the whistle 80 or 90 yards from where he was struck by the train. Conceding that these facts create an inference, which we do not decide, that he was seen 80 or 90 yards from where he was struck, and that he was lying down, there was no proof that the train could have...
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Kendrick v. Birmingham Southern Ry. Co., 6 Div. 781
...his peril on the track, and after becoming aware that he could not or would not extricate himself therefrom. Southern R. Co. v. Gullatt, 150 Ala. 318, 43 So. 577; Southern R. Co. v. Bush, 122 Ala. 470, 26 So. 168. Therefore, the complaint would not be good after showing that the intestate w......
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Herring v. Louisville & N.R. Co.
... ... defendant." ... This ... case has been cited often, and never overruled nor expressly ... qualified. In Gullatt's Case, a case no stronger for the ... plaintiff than this, it was held that the general affirmative ... charge should have been given, and it was ... becoming aware that he could not or would not extricate ... himself therefrom. Southern Ry. Co. v. Bush, 122 ... Ala. 470, 26 So. 168; Black's Case, 89 Ala. 313, 8 So ... 246; Moorer's Case, 116 Ala. 642, 22 So. 900." So ... Ry ... ...
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Thornton v. Southern Ry. Co.
... ... making all reasonable efforts to prevent injury after ... discovering his peril due to his being on the track or in ... dangerous proximity thereto, and becoming aware that he could ... not, or did not intend to attempt to extricate himself ... therefrom. Southern Ry. Co. v. Gullatt, 150 Ala ... 318, 43 So. 577. Unless there is a knowledge of the peril, ... there is nothing upon which to predicate subsequent ... negligence. Johnson v. Birmingham, Ry., L. & P. Co., ... 149 Ala. 538, 43 So. 33 ... There ... is absolutely no testimony showing that the plaintiff's ... ...
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Atkinson v. Kelley
... ... and becoming aware that he could not or did not intend to ... attempt to extricate himself therefrom. So. Ry. Co. v ... Gullatt, 150 Ala. 318, 43 So. 577. Unless there is ... knowledge of the peril, there is nothing upon which to ... predicate subsequent negligence. Johnson ... ...