Nashville, Chattanooga & St. Louis Railway Co. v. Harris

McCLELLAN, C. J. We deem it unnecessary to consider whether the first count of the complaint sufficiently charges willful, wantonness, or the like, since, assuming that it does, we are of opinion that no evidence was adduced on the trial tending to prove such charge. The only eye-witnesses to the occurrence were the fireman and the engineer. They each testified that as soon as the child was seen by them or either of them approaching the track, the track was sanded, the brakes were applied and the engine was reversed — that, in short, everything possible to be done to stop the train before it reached the point where the child came upon the track was promptly done. The speed of the train considered with reference to the place of the accident afforded no basis for an inference of willful, wanton, or reckless misconduct on the part of the engineer. Even if the declaration which the witness Hooper testified the engineer, Lane, made in his presence to the effect that he saw the little child when he was two or three hundred yards away from it, but thought it was a goat, be regarded as evidence in the case for any other purpose than the impeachment of the testimony of Lane given on the trial-— which it is not (1 G-reenleaf on Evidence, § 1611:), it has no legitimate tendency to show that Lane willfully ran against the child, or acted wantonly toward it, or was recklessly indifferent to its safety. There was some evidence tending to show that the whistle was not sounded nor the bell rung as the engine approached the crossing, [253] but this imported nothing beyond simple negligence on the part of the enginemen: standing alone it afforded no predicate for an inference of willfulness or wantonness on their part. The affirmative charge requested by the defendant, against the first count should have been given. All the evidence goes to show that the little child — a toddling baby nineteen months old — came on the track at the crossing and, seeing the train, turned up the track and after going several feet away from the crossing, stopped and stood looking at the approaching engine. Probably so far as she was capable of intention, the child’s purpose when it came onto the track was to cross over and beyond it along the road, and it was open to the jury to so find in line with the averment of the complaint in this connection. But her subsequent course made her a trespasser on defendant’s track — none the less so by reason of her tender age, for though she could not be charged with contributory negligence, she may be a trespasser upon the same facts that would impress that character upon a person of legal discretion — and being a trespasser the defendant, from the time she became one, owed her no duty other than to resort to all reasonable means to avoid injuring her after it, i. e., its servants, became aware of her presence and peril. The evidence without conflict showed that this duty was performed by the enginemen; that they did all that was possible to do to stop the engine before striking her. There was a tendency of the evidence, as we have seen, to show that the statutory signals for the crossing were not given. If there was any room on the evidence for the jury to find that she would not have come upon the mossing had these signals been given, the injury might be ascribed to their negligent pretermission. The jury might have concluded that she was injured in consequence of the failure to- give these signals and found against the defendant on that ground, though satisfied that the trainmen were not at fault after she came on-the track. But it is not our opinion that there was any thing in the evidence to justify such conclusion. To the contrary, the evidence shows affirmatively that the child [254] had not the least appreciation of the danger .of going on the track, that her knowledge of the approach of the train, assuming even that she was capable of such knowledge, made no impression of danger whatever upon her —after seeing she walked toward it, and <then stopped, gazing at it from a position in the middle of the track — - and a finding that she would have heeded the warning of the crossing signals, had they been sounded, and kept off the track, is not only unwarranted by the evidence, but would be distinctly opposed to every manifestation the circumstances afforded. To say the least, such a conclusion would be pure speculation and conjecture unsupported by any evidence. Hence our further conclusion that the affirmative charge requested against those counts of the complaint which charged negligence on the part of the defendant’s servants, should have been given: The injury is not shown to have resulted from the only negligence of which there is any evidence. We deem it unnecessary to discuss other rulings presented by the record. Reversed and remanded. Tyson, Simpson and Anderson, J.J., concurring.