Opinion
7 Div. 614.
May 16, 1940.
Appeal from Circuit Court, Etowah County; W. M. Rayburn, Judge.
Motley Motley, of Gadsden, for appellant.
The testimony shows that deceased was struck and killed by the train going south across the public road or crossing and his body was found where it would have been knocked by the train when hit, and within the city limits. The burden was on defendant to show that it complied with the law and that there was no negligence on its part. Deceased being at or near the public crossing, the law presumed he had the right lawfully to cross the railroad at that point. There was nothing to show he was unlawfully on the track, and defendant's agent or employes, the only eye-witness to the killing, did not testify that intestate was guilty of contributory negligence. Plaintiff was entitled to the affirmative charge, and charges 1 and 2 were erroneously given for defendant. Alabama G. S. R. Co. v. Boyd, 124 Ala. 525, 27 So. 408; Southern R. Co. v. Cates, 211 Ala. 282, 100 So. 356; Alabama G. S. R. Co. v. McDaniel, 192 Ala. 639, 69 So. 60; Nashville C. St. L. R. Co. v. Wallace, 164 Ala. 209, 51 So. 371; Louisville N. R. Co. v. Moran, 190 Ala. 108, 66 So. 799; Ex parte Southern R. Co., 181 Ala. 486, 61 So. 881; Southern R. Co. v. Penney, 164 Ala. 188, 51 So. 392; Dorough v. Alabama G. S. R. Co., 221 Ala. 305, 128 So. 602; Carlisle v. Alabama G. S. R. Co., 166 Ala. 591, 52 So. 341; Code 1923, § 9952.
Goodhue Lusk, of Gadsden, for appellees.
The undisputed facts clearly show decedent was not using the crossing, but was a trespasser at a point 25 to 45 feet from the crossing. Both defendants were entitled to the affirmative charge. The only possible inference from the evidence was that decedent was a trespasser, and there could have been no necessity for defendant to offer evidence to show that there was no negligence. Code, § 9955, does not require this nor place any burden upon a railroad to acquit itself of wanton conduct, nor to require defendant to go forward with the evidence under the issues presented by a subsequent negligence count, until there are facts shown by the testimony on which an inference might be based that the employes saw decedent's peril. Ex parte Southern R. Co., 181 Ala. 486, 61 So. 881; Southern R. Co. v. Drake, 166 Ala. 540, 51 So. 996; Robertson v. Southern R. Co., 224 Ala. 640, 141 So. 559; Central of Georgia R. Co. v. Moore, 200 Ala. 213, 75 So. 971; Elliott v. Northern Alabama R. Co., 222 Ala. 79, 130 So. 775; Empire Coal Co. v. Martin, 190 Ala. 169, 67 So. 435.
The court submitted to the jury simple and subsequent negligence counts. The pleas were in short by consent. The charge of simple negligence embraced that of subsequent negligence Alabama By-Products Corp. v. Rutherford, ante, p. 413, 195 So. 210.
The argument of appellant is directed to the giving of the affirmative instruction for the defendant. The rule is well understood. McMillan v. Aiken, 205 Ala. 35, 88 So. 135; Slaughter v. Murphy, Ala.Sup., 194 So. 649. When the plaintiff's evidence as detailed by Monroe and W. A. Meeks is considered, it was sufficient to submit to the jury the simple and subsequent negligence counts. There was a jury and verdict for the defendant, the Alabama Great Southern Railroad Company, a corporation. The affirmative charge was properly given as to the Southern Railway Company, a corporation, one of the defendants.
Ante, 260.
We find no reversible error on the introduction of the evidence. Thus we are brought to a consideration of the declining of plaintiff's motion for a new trial. The preponderance of the evidence is against the fact that plaintiff's intestate was stricken on the crossing, but at the switch as a trespasser. It is unnecessary to discuss the evidence as to the above material question of fact.
The motion for a new trial and assignment of error insist that there was error to reverse in the giving at defendant's request charges one and two.
In the third count is the averment that said "intestate was lawfully crossing said railroad at a public street crossing when he received his fatal injuries." It was necessary that plaintiff adduce proof of such statement, having assumed that burden by the express terms of the pleading. It will not be presumed that plaintiff's intestate was "lawfully crossing the railroad" at that public street crossing. Elliott v. Northern Alabama R. Co., 222 Ala. 79, 130 So. 775. This case is on the authority of Empire Coal Co. v. Martin, 190 Ala. 169, 67 So. 435, by Chief Justice Anderson, following the authority of Alabama G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 So. 84.
In Elliott v. Northern Alabama R. Co., supra, Mr. Justice Sayre said for the court that the record being silent as to the circumstances immediately attendant upon the death of a decedent, the failure or refusal of defendant to put his trainman on the stand as a witness in its behalf could not be considered by the jury for the purpose of making out a case against the defendant. It is further stated that if it be assumed that deceased was alive upon the track, still there was no evidence going to show how or when he came upon the track or that he came upon it in circumstances which suffice to warn the engineer of a train of the danger in time to have avoided it. It is conclusive that the rule of self-preservation cannot be allowed to take the place of evidence that deceased was guilty of negligence. The burden rests upon the plaintiff to show that, at the time of intestate's death, deceased was so circumstanced, as to the knowledge of the defendant, that its agents, by the exercise of due diligence, could have prevented the injury.
As to the second charge, the observations made as to the giving of charge No. 1 apply with equal force, it being referrable only to the simple negligence counts, both of which specifically aver that the plaintiff's decedent was on a public street crossing when he was struck.
It results from the foregoing that we find no reversible error committed on the trial and the judgment of the circuit court should be, and is, affirmed.
Affirmed.
GARDNER, C. J., and BOULDIN and FOSTER, JJ., concur.