The liability of the defendant railroad company depends upon the answer to a single inquiry: Did the engineer or fireman on the engine discover the presence of the intestate on the track in time to have avoided killing him either by stopping the train or by arousing him by warning signals to a timely understanding of his peril? Appellant insists that this question was erroneously submitted to the jury, because there was nothing in the evidence to show, or to permit a reasonable inference, that either of the enginemen discovered the presence of the intestate at all, and that, even though they had discovered him at some stage before the tragedy, there is nothing to show, or to permit a reasonable inference, *Page 358 that such discovery was made in time to have avoided that result by any preventive measures then available.
The trial judge's theory of the evidence was that it would permit a reasonable inference that the enginemen discovered the presence of the intestate on the track in time to have avoided the collision and killing either by stopping the train or by warning signals to the sleeping boy, and the question was submitted to the jury as a disputed question of fact.
As pointed out by counsel for appellant, the only facts before the court from which the required inferences could be drawn were (1) that the track was straight for about half a mile approaching the point of the killing, (2) that the engine had an electric headlight which enabled the enginemen to see along the track a distance of about 600 feet, and (3) that they were in fact keeping a general lookout down the track on the section of the road in question.
On this evidence it may be conceded, as a reasonable inference, that the engineer or fireman saw these boys as objects stretched along the track within the rails, as the train approached them. But the evidence does not indicate at what distance the observer from an engine cab could distinguish the nature of objects so small as the bodies of these boys must have appeared, lying flat on the ground, with their feet towards the train — an obviously unfavorable point of view, and at a time and place which would repel suspicious scrutiny.
In So. Ry. Co. v. Drake, 166 Ala. 540, 548, 51 So. 996, the plaintiff's intestate was lying with his head over a rail, and his body on the outside. One of the plaintiff's witnesses testified that with an electric headlight he thought an engineer could see a man, and tell it was a man, in 200 feet of him. The engineer testified that he saw an object about 150 feet away, but could not tell, and did not realize that it was a man until within about 30 feet of him.
In holding that upon this evidence the trial judge should have given the general affirmative charge for the defendant, this court, speaking through Mr. Justice Denson, said:
"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."
In that case the train was a passenger train running at a speed of 15 or 20 miles an hour, and the evidence showed that it could have been stopped within 100 to 150 feet.
In the instant case it does not appear what kind of train it was, nor within what distance it could have been stopped from its speed of 40 miles an hour, equal to 58.5 feet per second. If the enginemen had discovered that these objects on the track were human beings even at a distance of 200 feet, prevention of the killing would have been manifestly impossible, for the train would have reached and struck them in 3 1/2 seconds — too short a period of time to have slackened the speed materially, or to have seasonably aroused the sleeping boy by signals with bell or whistle.
Our conclusion is that the evidence does not support a finding for plaintiff under either the second or third count of the complaint, and that the trial judge erroneously refused to give for defendant the general affirmative charge as duly requested in writing.
For this error the judgment will be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.