The Montgomery advertiser., 1908-02-09
SOUTHERN RAILWAY COMPANY v:
STEWART.


SOUTHERN RAILWAY COMPANY v:
STEWART
Action for, Damages for Death OF Per-
son on Track.--( Decided November
%. 1907. As So. Rep. SOD
l.. Railroads; injury to person on
track; negligence after discovery Of
peril: complaint-A complaint alleg-
ing that at certain time defendant
was operating its trains at or near
certain crossing on Its railroad; that
plaintiffs intestate, then In life, was
lying on the track Of the railroad
near the crossing and the train was
approaching him under tho manage
ment and control of defendants SER
wants or agents; that intestate was put
in peril and defendants servants saw
the peril and saw that the intestate
| would not likely make any effort to
avoid being injured: that after the dis
covery OF intestate's peril. defendants
servants In charge and control of the
train SO negligently and carelessly con-
Quoted themselves in the management
\ thereof that the engine was caused to
run upon him and kill him, IL good
against demurrer that 1t appeared from
the complaint that he was trespass-
er and It did not appear therefrom that
defendant, or its employees, wantonly
| or wiifully killed him; that 1t did not
show DEFENDANTS servants saw the peril
in time to prevent injuring him, and
/ that 1t showed that the defendant was
guilty of contributory negligence which
contributed proximately to his injury
In falling to extricate himself before
the train reached him; In such cases,
after stating facts showing duty. very
general averments of negligence are
suflcient.
i 3. same: burden Of proof; defend
ants failure to examine witness-The
burden is on the plaintiff 70 make out
q prina facie case under his complaint
and no duty rests on defendant to Of
fer evidence until this is done. and
the failure Of defendant to call Its SER
wants as witnesses in its behalf or tc
offer any evidence cannot be consid-
cred by the jury for the purpose OF
making out q prima facie case against
defendant.
| 8. Same; duty as to trespassers.--
In the operation Of it's trains the Law
imposes no duty on q railroad company
to keep q lookout for treBpassers OF
the track. and there can be no recov'
cry for injury 20 a trespasser except
in cases of wanton or wi1ful miscon.
duct or Negligence after discovery Of
peril.
4. same; question for jury: engi
i neer's knowledge Of trespassers.-Ir
the absence OF evidence rs TO inc speSt
OF the train. Of the position Of th'
engineer, that the train could have beer
stopped quicker, or that the engineei
was looking forward at q place wher'
deceased could have been discovered
IN time to have avoided the accident
the showing that the track at thu
place OF injury was straight for nil'
and a half on either side ana that I
was . bright ana clear morning, Il
not sufHicient to raise the tnferenc'
reasonably that the engineer in FAC
discovered the decedent in time =
avoid the injury nor 20 warrant q sub
mission OF that issue to the jury.
S. Negligence: contributory negii
Rence as defense to an action for neg
IIigence after discovery OF peril AS
defense to an action for negligence at
ter discovery Of peril contributory neg
lliRence must be the negligent act o.
omission Of the injured person with
knowledge. Of the then present ant
impending peril.
Appeal from Jackson Circuit Court
Heard before Hon. w. W. HARRISON
Reversed and remanded. Opinion D!
Tyson. C j.. Simpson and benson. u
concur.