[Ed. Note. For other cases, see Railroads, course, through the corporate limits of the Dec. Dig. 398.*]

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 on the engine was ringing continuously. When between Fifteenth and Fourteenth streets the engine ran upon intestate; the exact point of the accident being about 64 or 65 feet east of the Fourteenth street crossing.

It was shown without conflict in the evidence that the intestate's body was lying to the south of the track, with head on the Re- south rail and face turned up, when the engine ran upon it. It was further shown

Weatherly & Stokely, for appellant. Pink- without conflict, by the testimony of the enney Scott, for appellee.

There was no evidence tending to show that the engineer was keeping a lookout just prior to the moment when he discovered the object, on or near the track, 150 feet ahead of the engine; but there was evidence which tended to show that, if the engineer had been looking ahead, he might have discovered the object before his engine had approached within 300 feet of it. There was also evidence which tended to show that the engine might have been stopped within the space of 150 or within even that of 100 feet. "In every case involving negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of defendant to perform that duty; and (3) injury to

S. & W.

the train-but that, on account of 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 distant from the crossing, and in the direction whence the train was approaching. Neither does the evidence show that the road or track was built in a street or public road; and, whilst there is evidence which tends to show that the street crossing was frequently used by pedestrains, still, after a careful consideration of the evidence, the court is of the opinion, and accordingly holds, that the evidence falls far short of showing that people were wont to pass over, or walk along, the track, with such frequency and in such numbers as to even make it a jury question whether or not the engineer owed any duty to trespassers to be on the lookout for them at the point where, and the time of night when, the disaster occurred. R. R. Co. v. Meadors, 95 Ala. 137, 10 South. 141; Nave's Case, 96 Ala. 264, 11 South. 391; B. R. L. & P. Co. v. Jones, 153 Ala. 157, 45 South. 177, and cases cited in the opinion in the last-mentioned case. authorities, the crucial point in the present In view of the foregoing consideration and case, in respect to the rightfulness or not of the trial court's refusal to give the affirmative charge requested by the defendant, is from which a reasonable inference might be whether the record discloses any evidence drawn that the engineer discovered the perillier than according to his testimony he did; ous situation of the plaintiff's intestate earconflict shows that the train could not have for, as has been seen, the testimony without been stopped within the space that, according to the engineer's statement, intervened between the approaching engine and the prostrate body of intestate when he (the engineer) first realized the peril of intestate. The en

plaintiff from such failure of defendant. When these elements are brought together, they unitedly constitute actionable negligence." 29 Cyc. 419. The principle announced above has been applied by this court. For instance, in the case of Birmingham Railway, Light & Power Co. v. Jones, 153 Ala. 157, 45 South. 177, following the case

of Southern Railway Co. v. Williams, 143 Ala. 212, 38 South. 1013, we said: "Actionable negligence being a failure to discharge a legal duty to the person injured, if there is no duty there is no negligence. And even if the defendant owed the duty to keep a lookout for persons rightfully on the track, but owed none to the plaintiff because she was a trespasser, no action will lie, for the duty must be to the person injured."

Therefore, in the instant case, although it was the duty of the engineer to keep a lookout 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 something 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; Fraz- 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: "If 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 roadBut 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 presed. If they were dressed in white clothes, ence and peril of the trespasser, by seeing or something of that kind, of course, you him, there could not be willful 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. O. & 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. 549, 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 chances for that matter."

gineer, nor a reasonable inference that the engineer willfully, wantonly, or intentionally ran the engine upon the intestate. Consequently the defendant was entitled to the general affirmative charge as requested by it. and the court erred to the prejudice of the defendant in not giving said charge. This conclusion renders unnecessary the consideration of other assignments of error.

By the light of the foregoing considerations 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 a human being until he was distant 30 feet from it. And while the sentence in De Garnett's testimony-"I think you could see a man in a couple of hundred feet and tell it was a man; that is my best judgment"if isolated, might seemingly authorize an inference that the engineer should have realized that the object in front of him was a human being when he saw it 150 feet away, yet in our opinion such an inference would be a strained one indeed, considering the quoted sentence in connection with the whole of that witness's testimony, and with the positive testimony of the engineer (plaintiff's own witness) to the effect that he did not realize that the object was a human being until he was only 30 feet from it. Therefore to say, upon the proof disclosed by the record, that the engineer saw and realized that the object was a human being before he 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 indulgence of pure conjecture or speculation.

The judgment of the trial court will be reversed, and the cause remanded. Reversed and remanded.

DOWDELL, C. J., and ANDERSON and SAYRE, JJ., concur.

The foregoing opinion in this case was prepared by Justice DENSON before his retirement as Associate Justice. Having been adopted in consultation, it is now announced as the opinion of the court.

POLLAK v. WINTER.

(166 Ala. 255)

(Supreme Court of Alabama. Jan. 13, 1910. Rehearing Denied Feb. 26, 1910.)

ATIVE AVERMENTS.

According to the authorities, "the test of responsibility is, did the striking of the intestate, by the engine, occur after the engineer had seen-not might or ought to have 1. EVIDENCE (§ 92*)-BURDEN OF PROOF-NEGseen-that is, discovered or distinguished, the intestate? Until the intestate had been seen, discerned, to be a human being, the engineer was under no obligation to the trespasser to check or stop his train, whatever might have been his duty to passengers on the train, or to persons rightfully using the

Though as a general rule the burden of proving a negative averment is not on plaintiff, still in an action on an open account plaintiff the rendition of service and value of same, but does not overcome the burden by merely showing must offer some proof that it was not paid.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 114; Dec. Dig. § 92.*ī

2. PAYMENT (§ 59*)-PLEADING-NEW MATTER. | cuit court is reversed, and the cause is reIn an action on a contract, payment after manded. breach is new matter, to be pleaded and proved by defendant.

[Ed. Note.-For other cases, see Payment, Cent. Dig. § 1432; Dec. Dig. § 59.*]

3. CONTRACTS (§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 of the contract before he is entitled to an affirmative charge.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. § 1776; Dec. Dig. § 348.*]

Reversed and remanded.

DOWDELL, C. J., and SAYRE and EVANS, JJ., concur.

BRYAN v. CARTER et al.

(Supreme Court of Alabama. Feb. 28, 1910.) 1. ALTERATION OF INSTRUMENTS (§ 18*)-MATERIAL ALTERATIONS-EFFECT.

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.

Action by Sallie Winter, administratrix, against Ignatius Pollak. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

lease.

[Ed. Note. For other cases, see Alteration of Instruments, Cent. Dig. § 140; Dec. Dig. § 18.*] 2. ALTERATION OF INSTRUMENTS (§ 2*)-MATERIAL ALTERATIONS.

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 agency and inserting his name as the agent of the lessor, and then executing the lease for the lessor, by signing the name of the lessor, by the third person as agent, is a material alteration, and vitiates the lease, unless the lessor and lessee both ratify the change.

[Ed. Note.-For other cases, see Alteration of Instruments, Cent. Dig. §§ 1-4; Dec. Dig. § 2.*1

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action by J. R. Bryan against W. F. Carter and others. From a judgment for defendants, plaintiff appeals. Affirmed.

The plaintiff offered in evidence a paper writing purporting to be a contract of lease for a dwelling house between J. R. Bryan and the Carters. The lease was partly print

ANDERSON, J. As a general rule the burden of proving a negative averment is not upon the plaintiff, but this rule does not seem to prevail in actions upon an open account, as distinguished from a stated or uncontroverted one; and when suit is brought upon an open account the plaintiff does not overcome the burden by merely showing the rendition of service and the value of same, but must offer some proof that it was not paid for when rendered or when due. Rice v. Schloss, 90 Ala. 416, 7 South. 802; Cook v. Malone, 128 Ala. 664, 29 South. 653; Enis v. Harris, 103 Ala. 330, 15 South. 834; 16 Encyc. of Pl. & Pr. 174–179; Van Giesen v. Van Giesen, 10 N. Y. 316; Lent v. New York R. R. Co., 130 N. Y. 504, 29 N. E. 988; Greated and partly written, and over the written Western Railroad v. Bacon, 30 Ill. 347, 83 Am. Dec. 199. All the authorities seem to agree that payment after a breach is new matter, to be specially pleaded and proven by the defendant, and, while they are divided as to whether or not the plaintiff must prove nonpayment when due or at maturity, the weight is with the holding of this court, and seems to proceed upon the theory that the plaintiff must prove a breach of the contract sued on, and in order to do this he must show that his debt was not paid when contracted or at maturity. After the plaintiff shows a breach of contract, and the defendant relies upon payment subsequent to said breach, he must plead and prove payment, which said subsequent payment cannot be shown under the general issue.

The plaintiff in the case at bar, not having shown a breach of the contract sued on, was not entitled to the general charge, which was erroneously given by the trial court, inasmuch as the defendant interposed a plea of the general issue. The judgment of the cir

part, which read, "By Consolidated Insurance Agency, agent for J. R. Bryan," was written "W. E. Martin, Agent," and the words "Consolidated Insurance Agency" were stricken out. It was shown for the defendant that at the time of the signing of the lease there was no such change made but that the lease was without erasure, and that the Consolidated Insurance Agency was named in said lease as the agent. There was some testimony as to the condition of the premises, not necessary to be here set out. The court sustained an objection to the introduction of the lease in evidence.

W. E. Martin, for appellant. Kerr & Haley, for appellees.

ANDERSON, J. It was uncontroverted that after the lease was signed by the defendants, and after it was delivered to the Consolidated Insurance Agency, it was altered by W. E. Martin, who erased the Consolidated Insurance Agency as contracting agents of the plaintiff, and inserted his own