RIVES, Circuit Judge.
This appeal is taken from an adverse judgment entered upon a directed verdict for appellee, granted at the conclusion of appellant’s testimony in his suit for damages for personal injuries sustained as a result of the alleged subsequent negligence of appellee’s train crew. After the trial court had granted appellee’s motion to dismiss both a simple negligence and a subsequent negligence count in the original complaint, the case was tried solely upon a third count charging subsequent negligence by appellee after discovery of appellant’s peril, and upon a pre-trial order purporting to limit appellant’s theory of recovery to subsequent negligence, and the defenses to the general issue and subsequent contributory negligence.
Appellant specifies error principally in the court’s direction of the verdict for alleged insufficiency of the evidence;
in its refusal to permit a re
quested trial amendment adding another simple negligence and a wanton count, as inconsistent with the pleadings and pre-trial order;
and in its further refusal to permit appellant’s voluntary dismissal without prejudice in lieu of instructing the verdict.
Since the latter two contentions attack the trial court’s
discretion, and we think no abuse of its discretion in those rulings is here shown which would justify review, the only remaining issue presented for our determination is that of the sufficiency of the evidence to require submission.
The testimony reveals that appellant, then approximately 8 years of age, was returning from school with several companions walking along in a path on the south side of a track upon which appel-lee’s train was traveling, and between the intersections of that track with Fourth Street and Third Streets, North, in the City of Birmingham, Alabama, about 3 :- 30 or 4:00 p. m. during daylight on the afternoon of January 12, 1953; that, according to his testimony, he did not see appellee’s train before it struck him, but was trying to pick up some papers from a notebook he had dropped on the track when “the front part” of appellee’s two-engine train cut off his leg; that he heard no train whistle or warning bells ring beforehand and only saw the train “a little bit before I was hit,” when “I was too scared to move;”- that Louise Reed, who lived “about fifty feet” from the Fourth Street crossing, testified she saw appellant drop his notebook on the track and stop for several minutes to pick up some papers, but that she did not actually see the train strike him, though she noticed afterwards that it had one of appellee’s “purple and white” engines pulling and one pushing it; that she did not see the train coming beforehand or hear it blow, though it was traveling “pretty fast” away from Birmingham along a curved section of track where one could see “about two blocks” ahead, and never slowed down or stopped; that she saw some men on the back engine, numbered “670”, who were “facing the way the train was going,” but “didn’t pay any attention to the front one;” and that after the accident a nearby telephone lineman gave her a piece of wire with which she fashioned a tourniquet for appellant’s leg to stop the bleeding. In response to further questioning by the court, Louise Reed testified:
“The Court: I believe you have stated that you did not see the train strike the boy.
“The Witness: I did not.
“The Court: Did you see enough to know by the evidence of your own eyes whether he was struck by the front engine or the middle of the train or the rear of the train? From what you saw could you tell? I am not asking what you heard, but what you saw.
“The Witness: No sir, because when I got up to him, I asked him what part of the train hit him. He never lost consciousness. He tole me, he said ‘That engine.’ I said ‘Which one?’ and he said ‘That one there.’ And it was going around.
“The Court: The one that was pushing on the rear end?
“The Witness: Yes, sir. That is what made me know to get the number, because it didn’t stop.
“The Court: And then you did take the number off the rear engine that was pushing?
“The Witness: Yes, sir.
“The Court: And you say it was 670?
“The Witness: Yes, sir.”
Two, other witnesses for appellant, John Johnson and Lucy Mae Barrow, identified the train involved as belonging to appellee, and Johnson testified that the engines were on the front and had none “on the back when it passed me,” though neither of these witnesses actually saw appellant injured. Consistent with its ruling heretofore quoted (footnote 3, supra), the court excluded further testimony as to the use by schoolchildren of the path where appellant was
walking when injured, though it later modified that ruling so as to permit appellant to offer such testimony solely on the issue of whether “the defendant’s agents were actually aware of his position of peril” at the time of his injury. Louise Reed, John Johnson, and appellant’s grandmother, Lucinda Garnett, were thén recalled and testified over ap-pellee’s objection to the frequent use of the path and track crossing by schoolchildren and the public generally, and that the path and crossing ran beside and across tracks upon which appellee’s trains made regular, daily trips. Appellant’s counsel then renewed his request for a trial amendment' before direction of the verdict, as follows:
“Mr. Silberman: Your Honor; at this time in view of the evidence which has just been adduced, in line with the Alabama cases we would like to amend our complaint and add two counts, one on simple negligence and one on willful or wanton conduct of the defendant.
“The Court: Do you object?
“Mr Bibb: Yes, sir, we object. We have had no opportunity to see them.
“The Court: I will sustain the objection.
“Mr. Rice: We except. We rest, your Honor.”
In Alabama, one who merely crosses over the tracks of a railroad is not a trespasser. Rush v. Central of Georgia Ry. Co., 223 Ala. 119, 134 So. 619, 621; Birmingham Ry. Light & Power Co. v. Jones, 153 Ala. 157, 45 So. 177, 179. In the case last cited the Supreme Court of Alabama said:
“So it is the settled doctrine of this court that while a person may, for the purpose of merely crossing a railroad, do so without becoming a trespasser, yet if he lingers on it, or walks along it at a place where he is not entitled to walk, he is a trespasser, and the company owes him no duty to keep a lookout for him. * * *
Free access — add to your briefcase to read the full text and ask questions with AI
RIVES, Circuit Judge.
This appeal is taken from an adverse judgment entered upon a directed verdict for appellee, granted at the conclusion of appellant’s testimony in his suit for damages for personal injuries sustained as a result of the alleged subsequent negligence of appellee’s train crew. After the trial court had granted appellee’s motion to dismiss both a simple negligence and a subsequent negligence count in the original complaint, the case was tried solely upon a third count charging subsequent negligence by appellee after discovery of appellant’s peril, and upon a pre-trial order purporting to limit appellant’s theory of recovery to subsequent negligence, and the defenses to the general issue and subsequent contributory negligence.
Appellant specifies error principally in the court’s direction of the verdict for alleged insufficiency of the evidence;
in its refusal to permit a re
quested trial amendment adding another simple negligence and a wanton count, as inconsistent with the pleadings and pre-trial order;
and in its further refusal to permit appellant’s voluntary dismissal without prejudice in lieu of instructing the verdict.
Since the latter two contentions attack the trial court’s
discretion, and we think no abuse of its discretion in those rulings is here shown which would justify review, the only remaining issue presented for our determination is that of the sufficiency of the evidence to require submission.
The testimony reveals that appellant, then approximately 8 years of age, was returning from school with several companions walking along in a path on the south side of a track upon which appel-lee’s train was traveling, and between the intersections of that track with Fourth Street and Third Streets, North, in the City of Birmingham, Alabama, about 3 :- 30 or 4:00 p. m. during daylight on the afternoon of January 12, 1953; that, according to his testimony, he did not see appellee’s train before it struck him, but was trying to pick up some papers from a notebook he had dropped on the track when “the front part” of appellee’s two-engine train cut off his leg; that he heard no train whistle or warning bells ring beforehand and only saw the train “a little bit before I was hit,” when “I was too scared to move;”- that Louise Reed, who lived “about fifty feet” from the Fourth Street crossing, testified she saw appellant drop his notebook on the track and stop for several minutes to pick up some papers, but that she did not actually see the train strike him, though she noticed afterwards that it had one of appellee’s “purple and white” engines pulling and one pushing it; that she did not see the train coming beforehand or hear it blow, though it was traveling “pretty fast” away from Birmingham along a curved section of track where one could see “about two blocks” ahead, and never slowed down or stopped; that she saw some men on the back engine, numbered “670”, who were “facing the way the train was going,” but “didn’t pay any attention to the front one;” and that after the accident a nearby telephone lineman gave her a piece of wire with which she fashioned a tourniquet for appellant’s leg to stop the bleeding. In response to further questioning by the court, Louise Reed testified:
“The Court: I believe you have stated that you did not see the train strike the boy.
“The Witness: I did not.
“The Court: Did you see enough to know by the evidence of your own eyes whether he was struck by the front engine or the middle of the train or the rear of the train? From what you saw could you tell? I am not asking what you heard, but what you saw.
“The Witness: No sir, because when I got up to him, I asked him what part of the train hit him. He never lost consciousness. He tole me, he said ‘That engine.’ I said ‘Which one?’ and he said ‘That one there.’ And it was going around.
“The Court: The one that was pushing on the rear end?
“The Witness: Yes, sir. That is what made me know to get the number, because it didn’t stop.
“The Court: And then you did take the number off the rear engine that was pushing?
“The Witness: Yes, sir.
“The Court: And you say it was 670?
“The Witness: Yes, sir.”
Two, other witnesses for appellant, John Johnson and Lucy Mae Barrow, identified the train involved as belonging to appellee, and Johnson testified that the engines were on the front and had none “on the back when it passed me,” though neither of these witnesses actually saw appellant injured. Consistent with its ruling heretofore quoted (footnote 3, supra), the court excluded further testimony as to the use by schoolchildren of the path where appellant was
walking when injured, though it later modified that ruling so as to permit appellant to offer such testimony solely on the issue of whether “the defendant’s agents were actually aware of his position of peril” at the time of his injury. Louise Reed, John Johnson, and appellant’s grandmother, Lucinda Garnett, were thén recalled and testified over ap-pellee’s objection to the frequent use of the path and track crossing by schoolchildren and the public generally, and that the path and crossing ran beside and across tracks upon which appellee’s trains made regular, daily trips. Appellant’s counsel then renewed his request for a trial amendment' before direction of the verdict, as follows:
“Mr. Silberman: Your Honor; at this time in view of the evidence which has just been adduced, in line with the Alabama cases we would like to amend our complaint and add two counts, one on simple negligence and one on willful or wanton conduct of the defendant.
“The Court: Do you object?
“Mr Bibb: Yes, sir, we object. We have had no opportunity to see them.
“The Court: I will sustain the objection.
“Mr. Rice: We except. We rest, your Honor.”
In Alabama, one who merely crosses over the tracks of a railroad is not a trespasser. Rush v. Central of Georgia Ry. Co., 223 Ala. 119, 134 So. 619, 621; Birmingham Ry. Light & Power Co. v. Jones, 153 Ala. 157, 45 So. 177, 179. In the case last cited the Supreme Court of Alabama said:
“So it is the settled doctrine of this court that while a person may, for the purpose of merely crossing a railroad, do so without becoming a trespasser, yet if he lingers on it, or walks along it at a place where he is not entitled to walk, he is a trespasser, and the company owes him no duty to keep a lookout for him. * * *
“The contention of the appellant in no wise conflicts with the further doctrine, which is settled by this court, that it is the common-law duty of a motorman, running a street car in a populous town or city, to keep a lookout for persons rightfully on the track and liable to be run over by the cars. * * * 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.” 45 So. 177 at pages 179-180.
In that case, it was further held that the general principle that a railroad company owes to a trespasser no duty to keep a lookout for him applies to railroads in city streets, as well as elsewhere. See, also, Glass v. Memphis & C. R. Co., 94 Ala. 581, 10 So. 215, 218; Watts v. Atlantic Coast Line R. Co., 256 Ala. 352, 54 So.2d 601, 605; Louisville & N. R. Co. v. Johns, 258 Ala. 440, 63 So.2d 574, 579. In Watts v. Atlantic Coast Line R. Co., 256 Ala. 352, 54 So.2d 601, 605, the Alabama Supreme Court further stated:
“Evidence that persons living in the neighborhood or the public use the railroad way for longitudinal passage for their own convenience is admissible in connection with other evidence to show wanton or wilful injury on the part of the agents or servants of the railroad company in charge of the train. Southern Railway Co. v. Stewart, 179 Ala. 304, 60 So. 927; Illinois Central Railroad Co. v. Martin, 213 Ala. 617, 105 So. 805; Northern Alabama Ry. Co. v. Guttery, 189 Ala. 604, 66 So. 580; Clark v. Birmingham Electric Co., 236 Ala. 108, 181 So. 294. Notoriety and duration of the public use are important only as tending to charge the company’s servants with knowledge of conditions in the ab
sence of direct proof of their actual knowledge. Southern Ry. Co. v. Stewart, supra. But such evidence of the use of the right of way as a passageway does not raise any conflict in the evidence so as to prevent the giving of the affirmative charge for the defendant. Callaway v. Griffin, 245 Ala. 598, 18 So.2d 547. Plaintiff’s right of recovery must be tested not by the duty owed to the general public under the evidence, but by the duty owed to plaintiff under the particular conditions shown by the evidence.”
Under the Alabama law, no more duty is owed to an infant trespasser than to an adult. Birmingham Ry. Light & Power Co. v. Jones, supra. In Callaway v. Griffin, 245 Ala. 598, 18 So.2d 547, 550, it was said:
“It may be further observed that all of our cases are to the effect that an essential of guilt of subsequent negligence means not imputed knowledge, but that, as stated in Louisville & N. R. Co. v. Griffin, 240 Ala. 213, 198 So. 345, ‘In order to predicate liability upon railroad for “subsequent negligence” railroad must be shown to have had actual knowledge of plaintiff in a perilous position and thereafter negligently fail to use all means at its command and known to skillful engineers so circumstanced to avert injury to the plaintiff when to have promptly and duly used such means could have averted the accident.' See also Young v. Woodward Iron Co., 216 Ala. 330, 113 So. 223.”
Appellant concedes, as he must, that under Alabama law, the plaintiff cannot recover on the subsequent negligence count unless it be shown that the defendant, or its servants, had actual knowledge of the plaintiff’s peril prior to the injury, but appellant insists that there was sufficient evidence from which such actual knowledge could be inferred,
' “among which are that the point of the accident was at a place frequently used by the people of the community, within a populous city, in broad light, along a level stretch of road, that the Appellant was standing before being struck and further that the Defendant frequently used the tracks where it happened."
At least one essential link in the chain of circumstances relied on by appellant is missing, viz.: there is no testimony that appellee’s engineer or other employees were actually maintaining a lookout, and, as we have seen, no duty of lookout was owed to the plaintiff, himself a trespasser. The jury was not authorized to infer both that a lookout was being maintained and that plaintiff’s peril was discovered in the face of the positive and uncontradicted testimony in defendant’s answers to interrogatories introduced by the plaintiff that it knew nothing of the accident, and that “the plaintiff was not seen by any employee of this defendant to be on the track ahead of, or otherwise in a position of peril from, any train of this defendant.” The district court had no proper course to follow, under the evidence in this case, except to direct a verdict for the defendant. The judgment is, therefore,
Affirmed.