Bickerstaff v. Illinois Cent. R. Co.

SOMERVILLE, J. The evidence has no tendency whatever to show that the engineer or fireman discovered the presence of the intestate on the track, or in dangerous proximity thereto, before he was struck by the train. His position on the end of the cross-ties, and the nature of his one wound on the head, render wholly untenable the theory that he was killed while on the track in front of the train, nor does defendant’s answer to the second interrogatory make such a concession. Conceding, however, that he was struck while on the track, either between the rails or on the ends of the cross-ties, there is nothing to show that he ever was within the vision of the engineer who was keeping a lookout. For, so far as appears, intestate may have stepped suddenly on the track at the moment he was struck, or he may have stepped up against the side of the engine or of a car. The evidence wholly failed to make out a case under either count of the complaint, and the trial judge properly gave the general affirmative charge for defendant. So. Ry. Co. v. Shirley, 189 Ala. 569, 574, 66 South. 511; Carlisle v. A. G. S. R., 166 Ala. 591, 52 South. 341; Northern Ala. R. R. Co. v. Henson, post, p. 356, 98 South. 18. We have examined the testimony' offered by plaintiff as to the public use of the track at the point of collision, and it falls very far short of showing such a neighboring population and such frequency of use by the public as to charge the enginemen with notice that some one would probably be in an exposed position on the track and would probably be injured in the absence of due precautions in the operation of the train. But, even had the evidence been sufficient in that respect, it does not appear that the train was negligently operated; that is, at a high and dangerous rate of speed, or without lookout or warning signals. Nor does the evidence bring intestate within the protection of the duty owed by the railroad under such conditions to one using the railroad track as a longitudinal passageway, for it does not appear that intestate was using the track in that way. So. Ry. Co. v. Stewart, 179 Ala. 304, 60 South. 927. A number of other rulings of the trial court are assigned for error, but if every one of those rulings had been in defendant’s favor it would have made no difference in the result; that is to say, it would not have aided plaintiff’s case, and would not have avoided the giving of the general affirmative charge for defendant. It is useless, therefore, to consider them. We think the jury were properly instructed, and we find no prejudicial error in the record. Let the judgment be affirmed. .Affirmed. ANDERSON, C. J., and THOMAS and BOULDIN, JJ„ concur.