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(166 Ala. 540)

of March, 1908, and judgment was entered SOUTHERN RY. CO. V. DRAKE. on that day. The bill of exceptions was sign(Supreme Court of Alabama. Jan. 13, 1910. ed and filed May 9, 1908; hence there is no

Rehearing Denied Feb. 26, 1910.) merit in appellee's point that the bill was 1. EXCEPTIONS, BILL OF (8 41*) TIME OF signed out of time.

Acts 1900-01, p. 1863, SIGNING.

8 18; Fidelity Mut. Life Ins. Co. V. Batson, Under Acts 1900-01, p. 1863, § 18, requir-136 Ala. 334, 34 South. 166. ing bills of exceptions relating to trials in the

It is conceded that the intestate was a Bessemer city court to be signed within 60 days after trial of the issues to which the bill relates, trespasser on the track of the defendant a bill of exceptions signed and filed May 9th was company at the time he was run upon by its signed in time, where the issues to which it re-train; and in view of this concession the lated were determined by verdict returned on March 11th.

case of the plaintiff may be considered in [Ed. Note.-For other cases, see Exceptions, two phases, as presented by different counts Bill of, Dec. Dig. & 41.*]

of the complaint: First, it is alleged in one 2. RAILROADS (8 369*)-INJURY TO TRESPASSER of the counts that the defendant's agent or -NEGLIGENCE.

servant, after discovering the perilous conActionable negligence involves three ele- dition of the intestate, was guilty of negliments: The existence of the duty by defendant to protect plaintiff from injury; his failure to gence which proximately caused the death perform such duty; and resulting injury to of the intestate; and, secondly, in another plaintiff. And hence a railroad engineer was count, or other counts, it is alleged that the not negligent in failing to keep a lookout for agent or servant of the defendant, acting one to whom he was under no duty to look out, though he may have been bound to keep a look within the scope of his duties, willfully, out for others at the same place.

wantonly, or intentionally caused the death (Ed. Note.-For other cases, see Railroads, of the intestate. Cent, Dig. 88 1259_1262; Dec. Dig. $ 369.*]

The train that ran upon the deceased was 3. RAILROADS (8 369*)-INJURY TO TRESPASS a passenger train, composed of an engine ERS-CARE REQUIRED. A railroad engineer was under no duty to

and three coaches; one of the coaches being exercise any care to prevent injuring a trespass

a Pullman sleeper. The engine was equiper on the track until his perilous condition was ped with an electric headlight, together with actually discovered.

all modern appliances necessary to be used [Ed. Note. For other cases, see Railroads, in the stopping of the train “in emergency,” Cent. Dig. § 1261; Dec. Dig. § 369.*]

and the coaches were also equipped with 4. RAILROADS (8 398*)—INJURIES TO TRESPASS- such necessary appliances. The engine was ERS-ACTIONS-SUFFICIENCY OF EVIDENCE.

In an action against a railroad company for controlled by a competent engineer, and the the death of a trespasser on the track, evidence headlight and the stopping appliances were held not to show that defendant's engineer ac- in good condition. The train had made a tually saw decedent and understood that he was a person before the engine was within 30 feet stop at the station on Nineteenth street, and of him.

was proceeding on its way, in a westerly [Ed. Note.-For other cases, see Railroads, course, through the corporate limits of the Dec, Dig. $ 398.*]

city of Bessemer. It was near the hour of 5. RAILROADS ($_390*)—INJURIES ON TRACK-1 a. m. The train was moving at the rate NEGLIGENCE-LAST CHANCE DOCTRINE.

of from 15 to 20 miles an hour, and the bell The last clear chance doctrine would not apply to make a railroad company negligent in

on the engine was ringing continuously. injuring a trespasser on the track until the en When between Fifteenth and Fourteenth gineer knew of his presence and peril.

streets the engine ran upon intestate; the [Ed. Note.-For other cases, see Railroads, exact point of the accident being about 64 Cent. Dig. 88 1324, 1325; Dec. Dig. $ 390.*]

or 65 feet east of the Fourteenth street crossAppeal from City Court of Bessemer; Wil. ing. liam Jackson, Judge.

It was shown without conflict in the evi. Action by Elizabeth V. Drake against the dence that the intestate's body was lying Southern Railway Company. From a judg. the south of the track, with head on the ment for plaintiff, defendant appeals. Re- south rail and face turned up, when the enversed and remanded.

gine ran upon it. It was further shown Weatherly & Stokely, for appellant. Pink-without conflict, by the testimony of the enney Scott, for appellee.

gineer, introduced by the plaintiff, that he

(the engineer) discovered the object wbich EVANS, J. This action is predicated upon proved to be intestate upon attaining a point section 27, Code 1896, and is brought by the within 150 feet of it; but that he did not administratrix of the estate of Jackson R. realize or discover that the object was a Drake, deceased, against the Southern Rail- human being, or that any part of it was on way Company, a corporation, to recover the rail, until the engine was only about damages for the alleged wrongful killing of 30 feet from it; that, immediately upon disthe plaintiff's intestate. The record (page covering that the object was a man, he (the 14) shows that the issues were determined engineer) employed all the means at hand to between the parties by the rendition of the stop the train and prevent it from running verdict returned by the jury on the 11th day | upon him—did all that was possible to stop

the train-but that, on account oi the near-, imposed on the engineer the duty to be on ness of the engine to the object, the means the lookout for persons who might be on employed proved futile, and the train, al- the track-for even trespassers. As has though it was stopped as quickly as was been stated, the plaintiff's intestate was not possible under the circumstances, ran upon at or on the crossing, but was lying with his intestate's body.

head on one of the rails, 64 or 65 feet disThere was no evidence tending to show tant from the crossing, and in the direction that the engineer was keeping a lookout just whence the train was approaching. Neither prior to the moment when he discovered the does the evidence show that the road or object, on or near the track, 150 feet ahead track was built in a street or public road; of the engine; but there was evidence which and, whilst there is evidence which tends tended to show that, if the engineer had to show that the street crossing was frebeen looking ahead, he might have discov- quently used by pedestrains, still, after a ered the object before his engine had ap- careful consideration of the evidence, the proached within 300 feet of it. There was

court is of the opinion, and accordingly holds, also evidence which tended to show that the that the evidence falls far short of showing engine might have been stopped within the that people were wont to pass over, or walk space of 150 or within even that of 100 feet. along, the track, with such frequency and in “In every case involving negligence there such numbers as to even make it a jury are necessarily three elements essential to question whether or not the engineer owed its existence: (1) The existence of a duty on

any duty to trespassers to be on the lookout the part of the defendant to protect the for them at the point where, and the time of plaintiff from injury; (2) failure of defend- night when, the disaster occurred. S. & w. ant to perform that duty; and (3) injury to

R. R. Co. v. Meadors, 95 Ala. 137, 10 South. plaintiff from such failure of defendant. 141; Nave's Case, 96 Ala. 264, 11 South. When these elements are brought together, 391; B. R. L. & P. Co. v. Jones, 153 Ala. they unitedly constitute actionable negli- 157, 45 South. 177, and cases cited in the gence.” 29 Cyc. 419. The principle announc- opinion in the last-mentioned case. ed above has been

In view of the foregoing consideration and applied by this court. For instance, in the case of Birmingham authorities, the crucial point in the present Railway, Light & Power Co. v. Jones, 153 case, in respect to the rightfulness or not of

the trial court's refusal to give the affirmaAla. 157, 45 South. 177, following the case

tive charge requested by the defendant, is of Southern Railway Co. v. Williams, 143 Ala. 212, 38 South. 1013, we said: “Action from which a reasonable inference might be

whether the record discloses any evidence able negligence being a failure to discharge drawn that the engineer discovered the perila legal duty to the person injured, if there

ous situation of the plaintiff's intestate earis no duty there is no negligence. And even if the defendant owed the duty to keep a for, as has been seen, the testimony without

lier than according to his testimony he did; lookout for persons rightfully on the track, conflict shows that the train could not have but owed none to the plaintiff because she been stopped within the space that, according was a trespasser, no action will lie, for the to the engineer's statement, intervened beduty must be to the person injured.”

tween the approaching engine and the prosTherefore, in the instant case, although it trate body of intestate when he (the engineer) was the duty of the engineer to keep a look- first realized the peril of intestate. The enout for persons using the crossing at Four- gineer's testimony upon this point was as folteenth street, and he may have also owed the lows: "I saw sometbing on the south side duty to his passengers to keep a lookout for of the track when I was about 150 feet obstructions on the track, the plaintiff can

away. It did not appear to me that this was take nothing in this action for the failure the body of a human being, and I did not see of the engineer to discharge such duties owed that any part of it was on the track until I to others. Her intestate was a trespasser, was in about 30 feet of it, and then I saw a and nothing was due him until the engineer man's head lying on the south rail, with the discovered his perilous situation. Beach on face turned up.” Plaintiff's witness C. L. Contr. Neg. (2d Ed.) § 203, and cases cited Spain, on cross-examination, testified: "With in note 5 to the text, amongst them being an electric headlight an engineer could or Bentley V. Georgia Pac. Ry. Co., 86 Ala. ought to see a man 300 or 400 yards; that is, 484, 6 South. 37; Carrington v. Louisville I mean, if he was looking ahead he ought & N. R. Co., 88 Ala. 472, 6 South. 910; Fraze to see that distance on a straight track.” er v. South & N. A. R. Co., 81 Ala. 185, 1 Defendant's witness De Garnett testified: "Il South. 85, 60 Am. Rep. 185. See, also, B. R. a man's whole body is lying outside of the L. & P. Co. V. Jones, 153 Ala. 157, 45 South. rail, with his neck across the rail, you would 177; C. of G. Ry. Co. v. Foshee, 125 Ala. have to get tolerably close to recognize it 199, 27 South. 1006; Montgomery's Ex. v. as a man. You might take an old switch tie, A. G. S. R. R. Co., 97 Ala. 305, 12 South. 170. or anything I see them leave along the road

But it is insisted that the evidence tends bed, and you could not tell over 50 feet away, to show that the conditions at the point or such a matter, whether it was a person

would not know what it was until I got in a track.” When the engineer is made aware of reasonable distance, say 150 feet. I would the presence and peril of a trespasser, by not think you could see an object in less than seeing him, he willfully, wantonly, or inten150 feet that way that you could tell. That tionally does him hurt at the peril of his emwould depend upon the way they were dress-ployer; but, until made aware of the pres. ed. If they were dressed in white clothes, ence and peril of the trespasser, by seeing or something of that ind, of course, you him, there ould not be wil or wanton might see them further. His seeing an ob- misconduct toward him, nor an intentional ject would depend a good deal, too, whether injury done him, except under certain condithe engineer was watching his lubricator, ortions of place, which have not been shown in his sand or water. He has duties to perform this case. Nor could the doctrine known as other than looking right down the rail. With that of “last clear chance," have room for a good headlight, if a cross-tie was lying on application. L. & N. R. R. Co. v. Brown, 121 top of the rail on a perfectly straight track, Ala. 221, 25 South. 609; Foshee's Case, 125 you could see it, where the engineer was Ala. 199, 27 South. 1006; N., C. & St. L. Ry. looking down, for 200 feet. I think, in my v. Harris, 142 Ala. 249, 37 South. 794, 110 best judgment, you could not see a man 200 Am. St. Rep. 29; Johnson v. B. R. L. & P. yards. I think you could see a man in a Co., 149 Ala. 529, 43 South. 33; L., N. 0. & couple of hundred feet, and tell it was a T. Ry. v. Williams, 69 Miss. 631, 12 South. man; that is my best judgment. An engineer 957; Tucker v. N. & W. Ry., 92 Va. 349, 24 has to take chances; if he was just to look S. E. 229; L., H. & St. L. R. Co. v. Hathaat everything, stop to see everything that way, 121 Ky. 666, 89 S. W. 724, 2 L. R. A. would possibly look like a man, he would not (N. S.) 498. get over the road at all; he has to take chan By the light of the foregoing consideraces for that matter."

tions and authorities, and after due considThe foregoing is substantially the evidence eration of the entire evidence, the court is bearing upon the point at issue. Manifestly at the conclusion that the evidence will not Spain's testimony presents no conflict with support a reasonable inference of actionable that of the engineer, to the effect that he did negligence against the defendant or its ennot discover that the object on the track was gineer, nor a reasonable inference that the a human being until he was distant 30 feet engineer willfully, wantonly, or intentionally from it. And while the sentence in De Gar- ran the engine upon the intestate. Consenett's testimony—“I think you could see a quently the defendant was entitled to the man in a couple of hundred feet and tell it general affirmative charge as requested by it, was a man; that is my best judgment"- and the court erred to the prejudice of the if isolated, might seemingly authorize an in-defendant in not giving said charge. This ference that the engineer should have realiz- conclusion renders unnecessary the consideraed that the object in front of him was a hu- tion of other assignments of error. man being when he saw it 150 feet away, yet The judgment of the trial court will be rein our opinion such an inference would be a versed, and the cause remanded. strained one indeed, considering the quoted Reversed and remanded. sentence in connection with the whole of that witness's testimony, and with the posi

DOWDELL, C. J., and ANDERSON and tive testimony of the engineer (plaintiff's SAYRE, JJ., concur. own witness) to the effect that he did not realize that the object was a human being

The foregoing opinion in this case was preuntil he was only 30 feet from it. Therefore

pared by Justice DENSON before his retire to say, upon the proof disclosed by the rec

ment as Associate Justice. Having been ord, that the engineer saw and realized that the object was a human being before he adopted in consultation, it is now announced

as the opinion of the court. reached the point 30 feet from it, and, consequently, that he had actual knowledge of intestate's peril before that point was reached, would, it seems to the court, be the indul

(166 Ala, 255) gence of pure conjecture or speculation.

POLLAK v. WINTER. According to the authorities, “the test of (Supreme Court of Alabama. Jan. 13, 1910. responsibility is, did the striking of the in

Rehearing Denied Feb. 26, 1910.) testate, by the engine, occur after the engineer had seen-not might or ought to have 1. EVIDENCE (8 92*)—BURDEN OF PROOF-Neg

ATIVE AVERMENTS. seen-that is, discovered or distinguished,

Though as a general rule the burden of the intestate? Until the intestate had been proving a negative averment is not on plaintiff, seen, discerned, to be a human being, the still in an action on an open account plaintiff engineer was under no obligation to the tres- the rendition of service and value of same, but

does not overcome the burden by merely showing passer to check or stop his train, whatever must offer some proof that it was not paid. might have been his duty to passengers on

[Ed. Note.-For_other cases, see Evidence, the train, or to persons rightfully using the Cent. Dig. § 114; Dec. Dig. $ 92.*i

2 PAYMENT ($ 59*)—PLEADING-NEW MATTER. , cuit court is reversed, and the cause is re

In an action on a contract, payment after manded. breach is new matter, to be pleaded and proved

Reversed and remanded. by defendant.

(Ed. Note.-For other cases, see Payment, Cent. Dig. 8 14342; Dec. Dig. $ 59.*]

DOWDELL, C. J., and SAYRE and

EVANS, JJ., concur. 3. NTRACTS ($_348*)-ACTIONS FOR BREACH -BURDEN OF PROOF.

In an action on a contract, in which defendant pleads the general issue, plaintiff, to sustain the burden of proof, must show a breach

BRYAN V. CARTER et al. of the contract before he is entitled to an af- (Supreme Court of Alabama. Feb. 211, 1910.) firmative charge.

1. ALTERATION OF INSTRUMENTS (8 18*)-MA(Ed. Note.-For other cases, see Contracts,

TERIAL ALTERATIONS-EFFECT, Cent. Dig. $ 1776; Dec. Dig. $ 348.*]

A material alteration of a lease, after its

execution by one of the parties thereto, made Appeal from Circuit Court, Cullman Coun- without his knowledge or consent, vitiates the ty; D. W. Speake, Judge.

lease. Action by Sallie Winter, administratrix,

[Ed. Note.-For other cases, see Alteration of against Ignatius Pollak. From a judgment

Instruments, Cent. Dig. $ 140; Dec. Dig. $ 18.*] for plaintiff, defendant appeals. Reversed

2. ALTERATION OF INSTRUMENTS (& 2*)—MATE

RIAL ALTERATIONS. and remanded.

An alteration in a lease, reciting that it

shall be executed through a designated agency J. B. Brown, for appellant. Gunter & Gun- of the lessor, made without the consent of the ter, for appellee.

lessee, who has signed the lease, by a third person erasing the name of the designated agen

cy and inserting his name as the agent of the ANDERSON, J. As a general rule the lessor, and then executing the lease for the burden of proving a negative averment is not third person as agent, is a material alteration,

lessor, by signing the name of the lessor, by the upon the plaintiff, but this rule does not and vitiates the lease, unless the lessor and seem to prevail in actions upon an open ac- lessee both ratify the change. count, as distinguished from a stated or un [Ed. Note. For other cases, see Alteration

of Instruments, Cent. Dig. $8 1-4; Dec. Dig. controverted one; and when suit is brought

$ 2.*] upon an open account the plaintiff does not overcome the burden by merely showing the

Appeal from City Court of Birmingham; rendition of service and the value of same,

H. A. Sharpe, Judge. but must offer some proof that it was not

Action by J. R. Bryan against W. F. Carpaid for when rendered or when due. Rice ter and others. From a judgment for defendV. Schloss, 90 Ala. 416, 7 South. 802; Cook ants, plaintiff appeals. Affirmed. V. Malone, 128 Ala, 664, 29 South. 653; Enis The plaintiff offered in evidence a paper V. Harris, 103 Ala. 330, 15 South. 834; 16 writing purporting to be a contract of lease Encyc. of Pl. & Pr. 174-179; Van Giesen v. for a dwelling house between J. R. Bryan Van Giesen, 10 N. Y. 316; Lent v. New York and the Carters. The lease was partly printR. R. Co., 130 N. Y. 504, 29 N. E. 988; Great ed and partly written, and over the written Western Railroad v. Bacon, 30 Ill. 347, 83 part, which read, “By Consolidated InsurAm. Dec. 199. All the authorities seem to ance Agency, agent for J. R. Bryan," was agree that payment after a breach is new written "W. E. Martin, Agent,” and the matter, to be specially pleaded and proven words "Consolidated Insurance Agency” were by the defendant, and, while they are divid- stricken out. It was shown for the defended as to whether or not the plaintiff mustant that at the time of the signing of the prove nonpayment when due or at maturity, lease there was no such change made but that the weight is with the holding of this court, the lease was without erasure, and that the and seems to proceed upon the theory that consolidated Insurance Agency was named the plaintiff must prove a breach of the con- in said lease as the agent. There was some tract sued on, and in order to do this testimony as to the condition of the premises, he must show that his debt was not paid not necessary to be here set out. The court when contracted or at maturity. After the sustained an objection to the introduction of plaintiff shows a breach of contract, and the the lease in evidence. defendant relies upon payment subsequent to

W. E. Martin, for appellant. Kerr & Hasaid breach, he must plead and prove pay-ley, for appellees. ment, which said subsequent payment cannot be shown under the general issue.

ANDERSON, J. It was uncontroverted The plaintiff in the case at bar, not having that after the lease was signed by the deshown a breach of the contract sued on, was fendants, and after it was delivered to the not entitled to the general charge, which was consolidated Insurance Agency, it was altererroneously given by the trial court, inas- ed by W. E. Martin, who erased the Conmuch as the defendant interposed a plea of solidated Insurance Agency as contracting the general issue. The judgment of the cir- agents of the plaintiff, and inserted his own

name as the agent who was executing the, 3. LIBEL AND SLANDER (8 94*)—PLEA OF JUSlease for Bryan, the plaintiff, and executed

TIFICATION-GENERAL ALLEGATIONS. the lease by signing the name of J. R. Bry- should state specific facts, showing in what cir

A plea of justification in libel or slander an, by him (Martin) as agent, and that this cumstances and in what manner plaintiff has was done without the consent of the defend- misconducted himself, and the matter set out in ants. Therefore the important question to the plea should be strictly conformable to the

matter alleged in the complaint, if it attempts determine is whether or not the alteration to justify as a whole; and hence a general alwas material. If it was material, it vitiated legation that the publication or words alleged to the lease. Prim & Kimball v. Hammell, 134 be libelous are true is not sufficient. Ala. 634, 32 South. 1006, 92 Am. St. Rep. 52: Slander, Cent. Dig. $8 219, 221; Dec. Dig. $

(Ed. Note.-For other cases, see Libel and Brown v. Johnson, 127 Ala. 292, 28 South. 94.*] 579, 51 L. R. A. 403, 85 Am. St. Rep. 134.

4. LIBEL AND SLANDER ($ 94*)_JUSTIFICATION We think the alteration was material.

-COMPLAINT. While the contract purported to bind the Though the imputation contained in the same lessor when signed by the defendants, conclusion from facts alleged, a plea of justifica:

complaint rests in inference, or is a legitimate it recited that it was to be executed through tion should show a state of facts which will the Insurance Agency, and not through Mar- warrant the truth of the charge. tin. One may have had authority to bind (Ed. Note.-For other cases, see Libel and Bryan to the terms of the lease, and the oth-Slander, Cent. Dig. $8 219–225; Dec. Dig. 8

94.*] er may not have had the same authority.

5. LIBEL AND SLANDER ($ 94*) - PLEA OF The Insurance Agency may have been more

PRIVILEGE-INSURANCE COMPANIES. responsible in case of a breach, and want of

In an action for libel in publishing in an authority to bind Bryan, than was Martin. It insurance magazine that plaintiff was convicted may be that Bryan subsequently ratified the of swindling, a special plea that defendant was

a mutual life insurance company having no act; but it is not a question as to whether stockholders, its policy holders all being directly or not Bryan subsequently made himself and pecuniarily interested in the profits and bound under the lease by ratifying the act losses of defendant, and that said magazine was of Martin, as the defendants' rights were fore privileged, is not demurrable.

mailed only to its policy holders, and was there based upon the status of the lease when they

(Ed. Note.-For other cases, see Libel and signed it, and the fact that Bryan ratified Slander, Dec. Dig. $ 94.*] the act of Martin did not render the defend McClellan, Mayfield, and Evans, JJ., dissentants bound by the lease, unless they ratified ing in part. the change in the lease, which does not ap Appeal from City Court of Birmingham; pear from the record.

White Sewing Ma- C. W. Ferguson, Judge. chine Co. V. Saxon, 121 Ala. 408, 25 South.

Action by W. A. Hunt against the Fidelity 784.

Mutual Life Insurance Company. From a As the trial court did not err in sustaining judgment for defendant, plaintiff appeals. the defendants' objection to the lease, the de Reversed and remanded. fendants were entitled to the general charge,

The complaint is in the following language: which was properly given. The judgment of the city court is affirmed.

Count 1: "Plaintiff claims of the defendant Affirmed.

the sum of $1,999.99 damages for falsely and

maliciously publishing of and concerning him, DOWDELL, C. J., and MCCLELLAN and in a printed circular, or printed paper, or SAYRE, JJ., concur.

printed bulletin, the following matter or print. ed words, with intent to defame the plaintiff,

viz.: 'The Conviction of a Swindler. Wile (167 Ala. 188)

liam A. Hunter, alias Hunt, was convicted in HUNT v. FIDELITY MUT. LIFE INS. CO. the district court of Dallas, Texas, for swind(Supreme Court of Alabama. Feb. 26, 1910.) and costs, through a bogus death conspiracy,

ling this company out of $31,000.00, policy 1. LIBEL AND SLANDER (8 94*)—JUSTIFICATION and was sentenced to five years in the peni. -SPECIAL PLEAS.

In an action for libel in the publication of tentiary. His sister, the beneficiary, citizens an article stating that plaintiff was convicted of Pecos City, Texas, the United States Cir of swindling, etc., a special plea, setting up cuit Court, a jury of twelve good and true truth as a justification and showing that plain. men, and the Supreme Court of the United tiff had been convicted, is insufficient, where it is not alleged that the conviction was valid, States held, against the company's conten. binding, or conclusive.

tion, that the quicksands of Pecos river swal. [Ed. Note.-For other cases, see Libel and lowed up the body of Hunter beyond discor. Slander, Cent. Dig. 222; Dec. Dig. § 94.*]

ery. The company, however, because of the 2. LIBEL AND SLANDER (8 94*)-PLEA OF JU8. disappearance of a handbag which had been TIFICATION.

part of Hunter's camping outfit, and one A plea of justification in an action for libel 'horse, who found his way through three and slander need justify only so much of the gates, a distance of twelve miles, near a rail. charge as is actionable.

[Ed. Note.-For other cases, see Libel and road station, and because he had been seer Slander, Cent. Dig. $ 219; Dec. Dig. & 94.*] by two different persons after he was suppos

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