Martin v. Kansas City, Memphis & Birmingham Railroad

CalhooN, J., delivered the opinion of the court. R. B. Martin, appellant’s intestate, was killed by the derail726 meat, of an engine. Tins case must be decided as if we were administering the laws of Alabama, in wbieb state the sad calamity took place. The various objections to the admission and exclusion of testimony over objection, and our opinion on them, need not be noted, though we have considered them all, because our conclusion would be the same if the objections of appellant had been sustained. The intestate was in the employment of the railroad company, as its tender of its water tank at New River, on its line of railway. This tank was not a station to take on passengers, but, on November 2, 1897, he got on, at that tank, a locomotive pulling a freight train of appellee going east, and rode on the locomotive until the fatal derailment at switch No. 5, some miles east of his tank. He was on this engine without the knowledge of the conductor, who would not have permitted it if he had known it. If he had been in the caboose, the car designed for human freight, he would have escaped an injury, as did the three persons who were in it, including one passenger. There was testimony tending to show that it was difficult to get into the caboose of a train going east at that tank, and that to do so required walking on a trestle or on top of cars. There was evidence tending to show a habit of the intestate of riding on the engine, and testimony tending to show that the engine was unsafe because of worn flanges, and that it was being-run at a dangerous rate of speed, down grade, towards the switch, and tending to show a defect in the original construction of the road at the switch, there being a curve and the outer rails not sufficiently elevated above the inner rails, and testimony showing satisfactorily, as we think, that the switch was not fastened. In fact, the bolt and pin of this switch were found lying together on the ground just after the accident, and it may well be concluded that the unfastened switch was the sole cause of the accident. This bolt and pin were seen out of place the [727] clay before the accident, and were pnt in, and several trains had gone safely over it. .From the position of the pin and bolt and tap when found, and the other evidence on this feature, it is hardly possible that tbeir removal could have been caused except by felonious design. The court below peremptorily charged the jury to find for the railroad company. From this record it is plain that the intestate was a trespasser on the engine, and in worse condition for the recovery of damages \han a passenger in his proper place on the train, or employes in their proper places. It is obviously perilous to ride on an engine, and a habit of doing so by the intestate does not- make it any the less dangerous. Warden v. Louisville, etc., Railroad Co., 94 Ala., 277. The facts in this case do not show such wanton negligence, with knowledge that the probable consequences of the conduct would be to inflict injury, as entitles a trespasser to recover. Alabama, etc., Railroad Co. v. Hall, 105 Ala., 599; Electric Co. v. Bowers, 110 Ala., 328; Beyer v. L. & N. Railroad Co., 114 Ala., 424; Louisville, etc., Railroad Co. v. Anchors, 114 Ala., 492; Alabama, etc., Railroad Co. v. Burgess, 114 Ala., 587. Affirmed,.