Conceding that the public use of defendant’s track as a passageway by trespassing pedestrians was such as to impose upon its servants the duty of observing due care not to take them unawares and injure them, at the point where the intestate’s body was found, it is clear, under the evidence before us, that in the operation of this train the engineman violated no duty in this regard, since the engineer was keeping a lookout and was running his train at a speed not exceeding 10 or 12 miles an hour, and this at a place where its approach could be easily seen and heard, and where pedestrians could easily leave the track.—Carlisle v. A. G. S. R. R. Co., 166 Ala. 591, 601, 52 South. 341. The trial judge properly instructed the jury that unless the trainmen actually saw Mrs. Shirley on the track, and in time to avoid injuring her, the plaintiff could not recover.
It is, however, insisted for the appellant: (1) That the evidence does not show nor permit any reasonable *573inference that the intestate was killed by the train; and (2) that, in any case, the undisputed evidence shows that the trainmen did not see her at all until the engine was passing her recumbent body by the side of the track; and (3) that, however that might be, there is no support in the evidence for any reasonable inference that the intestate’s death resulted proximately from any injuries inflicted by the train. Of course, if any one of these contentions be correct, the trial judge was in error in refusing to give for the defendant the general affirmative charge, as requested, on the whole case and on each of the counts.
Whatever might be said for and against the first and thir'd contentions as above noted, it seems entirely clear that the defendant’s second contention is well founded.
In the first place, there is nothing in the evidence that can be said to even suggest that the intestate was on the track in front of this train, or that she even at any time got as far as the track. The statement of the fireman, shortly after the engine passed her body, that “we have hit a woman,” conceding its admissibility as part of the res gestee, is in itself entirely consistent with the theory that, if the intestate was struck by the engine at all, she was struck from near the left side of the track; and, taken in connection with his testimony, it is certain that he did not see her struck, and only inferred that she was struck because he suddenly saw her body lying on the ground near the track. At any rate, the quoted statement cannot support any rational inference that he saw her walking or standing or sitting on or near the track. The proof is that she was found as she was first seen, lying prone upon the ground. In the absence of evidence to the contrary, the burden of proof in this respect being upon the plaintiff, it must be presumed *574that she was thus lying when the train approached her; and to a trespasser in that position the trainmen owe no duty of lookout and discovery.—So. Ry. Co. v. Stewart, 179 Ala. 304, 60, South. 927. The .testimony of the conductor, who was a witness for the plaintiff, confirms that of the engineer, who was a witness for the defendant, that both were keeping a lookout along the track in front, from the engineer’s window on the right of the cab, and that neither of them saw the intestate.
The only rational inference that can be drawn from all the evidence is that the intestate was lying upon the ground near the track when the train approached, and hence escaped observation by the conductor and engineer looking out on the opposite side of the cab.
It is to be noted that in those cases, where it has been held that notwithstanding the engineman’s testimony that they were keeping a lookout at the time of striking the injured person, and did not see him on or near the track in front of the engine, it was a question for the jury whether or not in fact they did see him, the rulings rest upon the assumption that some of the evidence showed that the injured person was in fact upon the bracio, and hence they must have seen him in spite of their denials.
In Carlisle v. A. G. S. R. R. Co., supra, in noting this very distinction, the court said: “It is to be observed that-in the Bush Case, 122 Ala. 470, 26 South. 168, the language quoted was used in view of the undisputed fact, and in the Shelton Case, 136 Ala. 191, 34 South. 194, in view of the fact expressly assumed for the argument, that the deceased was upon the track in advance of the engine and was destroyed by the engine. (Italics ours.) In the case under consideration the fact that the track was straight and the engine-men keeping a lookout ahead, as far as consistent *575* * * with other duties in the operation of the train, affords, of course, no inference that they saw deceased upon the track, unless by some other evidence it be .shown that she was in fact upon the track in advance of the engine.”
We can discern, in the present case, no valid theory upon which the jury could be authorized to infer that these enginemen saw this interstate in a place of danger, and then wantonly or intentioally or without heed ran upon her.
In L. & N. R. R. Co. v. Calvert, 172 Ala. 597, 55 South. 812, the plaintiff’s intestate was killed in a buggy at a public crossing, and it was shown that the enginemen were keeping a lookout down the track, but also for persons approaching the crossing; and it was held a question for the jury to determine whether the engineer, who was looking ahead, discovered the horse and buggy approaching the crossing and before the collision. The Galvert Case is therefore not an authority for guidance here.
We think that upon this issue the defendant was entitled to the general affirmative charge, and that its refusal was error.
Independently of this, upon a consideration of the defendant’s motion for a new trial, we are impelled to the conclusion that the overwhelming weight of the evidence shows that the intestate was not struck by the train at all, but that she Avas scratched and bruised Avhile wandering about in the night or early morning barefooted, in her night clothes, and in a half demented condition, and that she either lay down or fell down exhausted, near the track where she was found, long-before this train passed by. It seems incredible that she could have approached the track at this hour in a populous neighborhood, where great numbers of peo*576pie habitually passed, without being seen by any human being at any stage of her journey; and it seems equally incredible that she could have been struck on the head or body by a freight train going 10 or 12 miles an hour without other injuries than a few insignificant bruises and scratches which did not even break the skin. Nor is it at all apparent why her own statement as to the manner of her injuries, made, as three credible witnesses declare, while apparently rational, are not entirely trustworthy. On this issue the trial court should have set aside the verdict as being against the evidence, and granted the motion for a new trial.
Reversed and remanded.
Anderson, C. J., and Mayfield and Gardner, JJ., concur.