East Tenn., Va. & Ga. Railroad v. Baker

WALKER, J. — The evidence for the plaintiff tended to show that the mule came upon the track from the west side; that the field on that side was open and clear of obstructions, so that the engineer could see animals approaching from that direction; that the mule came upon the track seventy or seventy-five yards from the point where it was killed, and, without leaving the track at all, ran that distance ahead of the engine. The evidence for the defendant, on the other hand, tended to show that the mule came from the east side; that on that side there were obstructions to cut of the engineer’s view of the animals coming towards the track; that the mule first-ran across the track, and then came back upon it a second time just ahead of the engine, and ran along the track but a very short distance before it was struck and killed; that from the point where the mule first crossed the track to the place where it was killed was about fifty yards. It was the province of the jury to accept or reject the one or the other of these versions, in whole or in part, and to determine from the whole evidence what was the truth of the matter. The court can not say that it appears without conflict in the evidence that the defendant discharged the burden upon it to show that there was no negligence on its part which caused dr contributed to the alleged injury. There was evidence from which the jury might draw the inference, that if the engineer had been keeping a proper lookout he might have discovered the mule sooner, and in time to frighten it out of the way of danger, or to avoid killing it. When there are discrepancies in the testimony upon matters material to the issue, and -there is evidence from which the jury could draw an inference adverse to the defendant, the general charge in favor of the defendant should not be given.— Western Railway Co. v. Lazarus, 88 Ala. 453; Hall v. Posey, 79 Ala. 84. There was no error in the refusal to give such charge in this case. It was the duty of the engineer to be on the lookout for obstructions on the track, so far as such lookout could be maintained consistently with his discharge of his other duties. Failure to maintain a steady lookout is itself culpable negligence.— Western Railway Co. v. Lazarus, 88 Ala. 453; Mobile & Girard Railroad Co. v. Caldwell, 83 Ala. 196. This duty is one that must be constantly observed, not, however, so as to keep the engineer from attending to his other duties. The requirement is that the engineer, while giving all due care to the handling of his engine, must also maintain a steady watchfulness for dangers or obstructions ahead. — East Tenn., Va. & Ga. R. R. Co. v. Bayliss, 75 Ala. 466. To prove that the engineer was on the lookout when he actually discovered 634 an obstruction on the track, is not enough to show that he has fully performed his duty in this regard. If he failed to discover the obstruction sooner, when he might have done so if he had been duly watchful, then the defendant is chargeable with negligence. — Kansas City, M. & B. R. R. Co. v. Watson, 8 So. Rep. 793; 91 Ala. 483. The engineer might have been “on the lookout for obstructions at the time he discovered the mule,” as hypothesized in both the 2d and 3d charges requested by the defendant, and yet have negligently failed to maintain such lookout prior to the time of the actual discovery, and the failure to see the mule soon enough to avoid killing it may have been owing to the absence of proper watchfulness. Those charges were rightly refused, because, in obedience to either of them, the jury could have found for the defendant, though they were satisfied from the evidence that the engineer was negligent in not maintaining such a lookout as would have enabled him to discover the mule in time to avoid the casualty. The duty 1o be watchful is not to be confined to the time of the actual discovery of an obstruction. The steady performance of the duty is enjoined in order that obstructions may be discovered in time to avoid casualties therefrom, if practicable. No error is discovered in the record. Affirmed.