Southern Ry. Co. v. Forrister

DOWDELL, J. Considering the assignments of error in the order in which they arc1 argued by counsel for appellant, the first question presented is on the demurrer to the fourth count of the complaint. The fourth count in terms avers simple negligence,' and “fails to [482] show either that plaintiff’s intestate, when injured, was not a trespasser on defendant’s track, or that defendant’s servants in charge of the train became aware of her perilous position on the track and were thereafter guilty of actionable misconduct.” — Gadsden & Attalla Ry. Co. v. Julian, Adm’r, 133 Ala. 371, 32 South. 135, and cases there cited. “A child, as well as an adult, may be a trespasser; and ordinarily a railroad company is under no more obligation to ' keep a lookout for children who, without enticement for which it is responsible, may go on the track at a place where they have no right to be, than to look out for adults.” — Gadsden & Attalla Ry. Co. v. Julian, Adm’r, supra; Highland Ave. & B. R. R. Co. v. Robbins, 124 Ala. 313, 27 South. 422, 82 Am. St. Rep. 153; A. G. S. R. R. Co. v. Moorer, 116 Ala. 642, 22 South. 900; 3 Elliott on Railroads, § 1259. The. demurrer to the fourth count, should have been sustained, and the court committed error in overruling it. The second count is not subject to the grounds of demurrer interposed. It is argued that the engineer had a right, after seeing plaintiff’s intestate on the track, to presume that she would get off. It is averred in the count that the deceased was an infant, 14 months and 23 days old, and it is not to be supposed that one of such tender age would appreciate the perilous situation, or have sufficient judgment and discretion to extricate herself. The presumption that one so young would appreciate the peril of an approaching train and avoid it by getting off of the track would be unreasonable. This is not a suit by the parent to recover pecuniary compensation, but the action is in the name of the personal representative of the deceased. If death had not resulted, and the action had been brought by the infant, who is alleged to have been under 15 months of age, neither the contributory negligence of the infant nor that of parents [483] would have been available as a defense to the action.— A. G. S. R. R. Co. v. Burgess, 116 Ala. 509-515, 22 South. 913. There was no error in sustaining the demurrers to tin1 pleas of contributory negligence. The witness Mrs. Forrister, having testified that she lived near a railroad all of her life and knew “the blows of an engine, and that there were two long blasts of the whistle,” was competent to testify the meaning of such signal. The frequency of travel and the use of the path along tin1 side of the track by the public where the accident occurred, at and prior to the time of the accident, was within the issues; and hence the evidence of the witness McCutchen as to the frequency of use of the path by the pubic in 1904 was competent. The purpose of this evidence being to fix a knowledge of conditions on the defendant and its servants, the length of time covered by the public travel along the path was relevant. The grounds of objection to the question to the witness Osborne as to within what distance a train could be stopped on a straight trade with slight upgrade, equipped with air brakes, and drawing seven or eight cars, and running at a speed of about 35 miles an hour, were that it called for illegal evidence and that the* witness was not shown to be an expert. The evidence called for under the issues in the case was relevant, and not illegal. The witness testified that he had been an engineer for 2 or 3 years on the Louisville & Nashville Bailroacl, about 20 years ago, and had since that time observed the operation of trains and for the past 3 or 4 years lived near tin* defendant's railroad, and had noticed the trains operated on that railroad, equipped with air brakes. We think, under this evidence, the witness was shown to be qualified to testify his opinion, and the court committed no error in overruling the objections on the grounds stated. [484] The evidence tended to show that the track Avhere the accident occurred Avas straight for distance of about two miles in the direction from Avhich the train was approaching, and it Avas in the daytime, Avith nothing to obstruct the view, and that the engineer Avas looking ahead. On this state of the eAddence it has been repeatedly held by this court that it becomes a question for the jury Avhether the engineer did or did. not see the obstruction on the track, notAvithstanding he may testify that he did not see it. If he did see the .obstruction, in this case the child, if in fact it Avas on the track, and that is also a question for the jury, and Avillfully failed, or with reckless indifference to consequences omitted, to use preventive effort to avoid the injury, after discovery of peril, if discovered in time for preventive effort, he would be guilty of wanton wrong. These were all questions for the jury under the evidence. What Ave Inure said, Ave think, avíII be a sufficient guide on another trial; and for the errors indicated the judgment is reversed, and the cause remanded. Reversed and remanded. Simpson, Denson, and McCeedlan, J.J., concur.