v.
E. D. Carraway
Lead Opinion
delivered the opinion of the court.
Leaving altogether out of view Sec. 1985 of the Code of 1906, still the peremptory instruction requested by appellant was properly, refused.
At the time the engine struck deceased it was being preceded by a flagman to whom the engineer looked for signals and, according to the evidence of Ward, a witness for appellee, the truth of which was for the jury and not the court, this flagman saw deceased on the track and must have realized that he was unaware of his danger in ample time to have warned him of the approaching engine or to have signaled the engineer who then could, have stopped the engine before it struck deceased.[*821] Granting that deceasd was guilty of contributory negligence as to which we express no opinion, if the employees of appellant in charge of the train, after discovering his peril, could by the exercise of reasonable care have avoided inflicting the injury, it was their duty so to do.
Affirmed.
Suggestion of error overruled.
Dissent
(dissenting).
In the first consideration of this ease by the court I consented to its affirmance with grave doubt as to the correctness of the court’s view at that time. A careful re-examination of the record convinces me that the court was in error. Under the facts of this case, as they appear to me, this court cannot affirm unless it is to say that in all cases of injury by the running of the train, no matter how the injury happens, there is liability on the part of a railroad company. The testimony in my .judgment utterly fails to show any negligent act on the part of the railroad company. Nothing that the company did or left undone could have prevented this injury.
Considering the cáse from any standpoint the testimony warrants, it shows a clear case of gross neglect on the part of the party injured to take ordinary precaution to provide for his own safety. His injury was the «direct result of his own negligence.
Section 1985 has no application to the case because the facts surrounding the injury are fully developed. The testimony offered by the railroad company shows that it was guilty of no negligences, and the testimony offered by the appellee clearly shows that the injured party was guilty of contributory negligence. I have no fault to find with the abstract law announced in the majority opinion, but it is my judgment that the facts make no case for the application of this principle.