Opinion
6 Div. 630.
October 16, 1930. Rehearing Denied November 28, 1930.
Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.
James J. Ray and J. B. Powell, both of Jasper, for appellant.
At the place at which deceased was killed, the defendant's agents or servants were required to keep a lookout for persons on the track, and not to run at such a rate of speed as to endanger deceased and other persons who might be on the track or crossing it at that place. Georgia P. R. Co. v. Lee, 92 Ala. 271, 9 So. 230; Haley v. Kansas City, M. B. R. Co., 113 Ala. 640, 21 So. 357; Southern Ry. Co. v. Crenshaw, 136 Ala. 583, 34 So. 913; Alabama G. S. R. Co. v. Guest, 136 Ala. 352, 34 So. 968; Alabama G. S. R. Co. v. Guest, 144 Ala. 379, 39 So. 654; Mobile, Jackson K. C. R. Co. v. Smith, 153 Ala. 127, 45 So. 57, 127 Am. St. Rep. 22; Grauer v. Alabama G. S. R. Co., 209 Ala. 571, 96 So. 915; Northern A. Ry. Co. v. Guttery, 189 Ala. 604, 66 So. 580; Central of Ga. Ry. Co. v. Graham, 218 Ala. 624, 119 So. 654; Birmingham R. L. P. Co. v. Bowers, 110 Ala. 331, 20 So. 345; Birmingham R. L. P. Co. v. Fuqua, 174 Ala. 631, 56 So. 578; Illinois Cent. R. Co. v. Martin, 213 Ala. 617, 105 So. 805. The deceased, knowing he was on a railroad track and in a place of danger, would be actuated by the natural instinct of self-preservation, which is evidential, and would do all he could to keep out of the way of the train, as it was his duty to do. Ledbetter v. St. Louis S. F. R. Co., 184 Ala. 465, 63 So. 987; Allen v. Willard, 57 Pa. 374; Brombley v. Birmingham R. Co., 95 Ala. 403, 11 So. 343; Cook, Adm'r, v. Cent. R. B. Co., 67 Ala. 533; Louisville N. R. Co. v. Thornton, 117 Ala. 280, 23 So. 778; Alabama G. S. R. Co. v. Skotzy, 196 Ala. 25, 71 So. 335; Shelby Iron Co. v. Bean, 203 Ala. 78, 82 So. 92; Con. Imp. Co. v. Stead, 95 U.S. 161, 24 L.Ed. 403; Louisville N. R. Co. v. Crawford, 89 Ala. 245, 8 So. 243; Baltimore O. R. Co. v. Griffith, 159 U.S. 603, 16 S.Ct. 105, 40 L.Ed. 274; Texas P. R. Co. v. Gentry, 163 U.S. 353, 16 S.Ct. 1104, 41 L.Ed. 186; Lunde v. Cudahy P. Co., 139 Iowa, 688, 117 N.W. 1063; Allen v. Willard, 57 Pa. St. Rep. 374; Gay v. Winter, 34 Cal. 164. The general charge, with hypothesis, when there is any evidence which tends to establish the plaintiff's causes, or any reasonable inferences to be drawn from the evidence tending to establish plaintiff's cause, or any circumstances from which a jury could reasonably infer that plaintiff should recover, even a scintilla of such evidence, the general affirmative charge should not be given. Amerson v. Coronoa C. I. Co., 194 Ala. 175, 69 So. 601; Standard Cooperage Co. v. Dearman, 204 Ala. 556, 86 So. 537; Penticost v. Massey, 202 Ala. 682, 81 So. 637; McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135; Haynes v. Phillips, 211 Ala. 38, 99 So. 356; Crim v. Louisville N. R. Co., 206 Ala. 121, 89 So. 376.
Bankhead Bankhead, of Jasper, for appellee.
In an action against a railroad company for the death of a trespasser on its track struck by a train, proof that deceased was killed by the train does not cast the burden upon the railroad of proving want of negligence; the burden of proof being upon the plaintiff to prove the negligence of the agents or servants of the railroad company. Louisville N. R. Co. v. Rayburn, 192 Ala. 494, 68 So. 356; Louisville N. R. Co. v. Jones, 191 Ala. 484, 67 So. 691; Louisville N. R. Co. v. Moran, 190 Ala. 108, 66 So. 799; Young v. Woodward Iron Co., 216 Ala. 333, 113 So. 223; Birmingham A. R. Co. v. Campbell, 203 Ala. 300, 82 So. 546. In a case where there were no eyewitnesses to striking of deceased while walking on the railroad track and no evidence as to how he met his death, it was proper to give the general charge for the defendant. Bickerstaff v. Illinois Cent. R. Co., 210 Ala. 280, 97 So. 842. Where a decedent was killed at night by a railroad train and there was no one who saw the accident, the mere fact that he was killed on the track was not sufficient to afford an inference that he was ever on the track in advance of the engine. Nor was it sufficient to afford an inference that either the engineer or fireman, even though they were keeping a lookout, saw the deceased on the track. Carlisle v. Alabama Great Southern R. Co., 166 Ala. 591, 52 So. 341; Bickerstaff v. Illinois Central R. Co., 210 Ala. 280, 97 So. 842; Copeland v. Central of Georgia R. Co., 213 Ala. 620, 105 So. 809; Thornton v. Southern R. Co., 199 Ala. 534, 75 So. 4; Louisville N. R. Co. v. Moran, 190 Ala. 117, 66 So. 799; Southern R. Co. v. Gullatt, 150 Ala. 320, 43 So. 577; Snyder v. Mobile L. R. Co., 214 Ala. 312, 107 So. 451; Johnson v. B. R. L. P. Co., 149 Ala. 537, 43 So. 33; Isbell v. Northern Alabama R. Co., 213 Ala. 692, 106 So. 145; Southern R. Co. v. Stewart, 153 Ala. 133, 45 So. 51; Southern R. Co. v. Stewart, 164 Ala. 171, 51 So. 324; Southern R. Co. v. Stewart, 179 Ala. 304, 60 So. 927; Grauer v. Alabama Great Southern R. Co., 209 Ala. 568, 96 So. 915.
At 6 o'clock of the morning of March 12, 1927, the body of plaintiff's intestate was found on the track of defendant's railroad, decapitated and mangled in a manner which indicated that, if intestate had been alive upon the track, a train of defendant's had caused his death and that some hours before his body was discovered. After hearing the evidence adduced by plaintiff, the trial court gave the general affirmative charge for defendant. Hence this appeal.
In order, that there may be no misapprehension of the two opinions, we note that on the former appeal in this case ( 219 Ala. 423, 122 So. 402) the bill of exceptions showed the testimony of a single witness, Beavers, who testified that he was in the close neighborhood of deceased, who was on defendant's track walking toward the train which is supposed to have caused his death. That was about 7 o'clock in the evening of March 11th and the engine's headlight was burning. On the last trial, now under review, Beavers did not testify, none of his testimony on the first trial reproduced. Appellant's case at this time depends exclusively upon one fact in evidence, viz., that decedent's body was found upon the track of defendant's railroad in a condition which indicated that a train had run over it, and upon the tendency of some evidence introduced by plaintiff going to show as plaintiff contends, that defendant's train was moving with more than customary speed at the time and place of decedent's death and that many pedestrians generally walked along the track at that place.
As for the last member of plaintiff's thesis, it was conceded, though very doubtfully, that there was evidence tending to show that, to use the language of the decisions, there had been such long-continued use of defendant's track by a large number of people, of such notoriety as in reason to charge the company with knowledge, and put upon it the duty to maintain a lookout where otherwise there would be no such duty. Atlantic Coast Line v. Carter, 214 Ala. 252, 107 So. 218. This results from the rule that as against a trespasser, or a bare licensee, a railroad company has a right to run its trains in the usual way, without special precautions, unless the circumstances of themselves give warning of his probable presence, and he is not seen until it is too late to prevent injury. Chenery v. Fitchburg Railroad, 160 Mass. 213, 35 N.E. 554, 22 L.R.A. 575. And this last-stated rule applies in the case presented by the record, if it be assumed that defendant's train killed plaintiff's decedent, for, without dispute, decedent's body was found about midway between two crossings about one-half a mile apart and so at a point where no one had a right to be except for the purpose of crossing the track. Glass v. Memphis Charleston Railroad, 94 Ala. 581, 10 So. 215.
But, at the trial now under review, there was not a syllable of evidence tending to show the circumstances of the presence of deceased upon the track. A verdict for plaintiff could have been justified on one hypothesis only, namely, that defendant's engineer became aware, not only of the presence of deceased upon the track, but that the circumstances of his presence reasonably indicated peril, and thereafter failed to take such precautions for his safety as due care would have suggested. As to the circumstances immediately attendant upon the death of deceased the record is silent. The failure or refusal of defendant to put its trainmen on the stand as witnesses in its behalf could not be considered by the jury for the purpose of making out a case against defendant. Southern Railway v. Stewart, 153 Ala. 137, 45 So. 51. There being no evidence going to show how deceased, or his body, came to be upon defendant's track, the jury were properly instructed to find with the defendant. Or, if it be assumed that deceased was alive upon the track, still there was no evidence going to show how or when he same upon the track or that he came upon it in circumstances which sufficed to warn defendant's engineer of his danger in time to have avoided its consequences. Carlisle v. Alabama Great Southern, 166 Ala. 591, 52 So. 341. The instinct of self-preservation, which it may be supposed deceased had in common with humans generally, cannot be allowed to take the place of evidence that defendant was guilty of negligence. There must in cases of this character be proof that defendant's negligence caused the injury complained of, "and the presumption that no one will contribute to his own injury cannot take the place of such evidence." Bromley v. Birmingham Mineral, 95 Ala. 405, 11 So. 341, 344. The burden rested upon the plaintiff to show that at the time of the intestate's death — conceding for the argument that the jury might have properly found that the death of deceased was caused by defendant's train — deceased was so circumstanced to the knowledge of defendant as that defendant could, by the exercise of due diligence, have prevented the injury. Cardwell v. Louisville Nashville, 185 Ala. 628, 64 So. 564; Louisville Nashville v. Moran, 190 Ala. 117, 121, 66 So. 799. The judgment here is that, on any reasonable interpretation of the evidence, plaintiff, appellant, failed to sustain the burden of proof put upon her by the law and that the trial court correctly instructed the jury, with hypothesis, to find for defendant.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.