A. In the position he was standing. Q. Just then you heard a whistle blow, and just then he was struck. A. Yes, sir. precautions and is injured by collision with a passing train, which he might have seen if he had looked or heard if he had listened, he will be presumed to have contributed Q. Had he taken one foot off the hub and to the occurrence of the accident, and, unless started out? A. I think he had. that presumption be overcome, he cannot recover for the injury. That this proposition Q. Had his foot touched the ground when applies to attempts to cross suburban elecyou saw it? A. I don't know. The witness further testified that the car could have been seen at least 200 yards before it reached the wagon, and that, al though Carey could not see it in the position in which he was standing on the hub, he could have seen it while standing there if he had turned around and looked. Both the witness Ternant and the plaintiffs' witness Kirkwood testified that the body of the car projected out over the track; the latter saying, when asked how far it projected: "About 6 inches, I suppose." Ternant also said that Carey would have been struck by the car if he had remained standing upon the hub of the wagon. Frank Quinn testified for the plaintiff's that Carey was about 6 feet tall, weighing about 170 or 180 pounds, but was not a fleshy man. The evidence also shows that Carey had lived for some years in the vicinity where the accident occurred. There is no evidence as to the rate of speed at which the car was going when it struck Carey, other than the fact that it ran a length and a half, 90 feet, after the collision before it stopped. We are of the opinion that the case was properly taken from the jury. The evidence on behalf of the plaintiffs, which, for the purpose of this inquiry, must be taken as true, presents a clear case of negligence on the part of Carey directly contributing to the accident which caused his death. He was struck by the car while in the act of stepping down backward from the hub of the wagon wheel toward, if not upon, a railroad track but 2 feet distant from the wheel, without taking the slightest precaution to ascertain whether a car was approaching. He could have seen the car in time to save himself if he had simply turned around and looked for it. He must have been familiar with the proximity of the railway tracks to the public road, as he resided in the immediate neighborhood. Furthermore, he had been riding along the public road in full view of the railway track just before the happening of the accident which cost him his life. It has long been the settled law in this state that it is negligence per se for anyone to attempt to cross the tracks of a railway without first looking and listening for approaching trains and stopping to look if the view be obstructed; and, if he neglect these tric railways has been held by us in MeNab v. United R. & Electric Co. 94 Md. 727, 51 Atl. 421, Hatcher v. McDermott, 103 Md. 78, 63 Atl. 214, and other cases. It must, upon principle, be held applicable, also, to attempts to go upon a railway track or so near to it as to come into collision with a passing train or car. If the injured party in such a case is debarred by his negligence from recovering damages for the injury, it necessarily follows that no suit can be maintained for the benefit of his representatives if his injury prove fatal. The counsel for the appellants contended with much ability, at the hearing of the appeal, that the case came within the operation of the doctrine of the last clear chance, upon the theory that the position of Carey while standing upon the hub was one of peril in which the motorman of the approaching car could, by the exercise of proper diligence, have seen him in time to have saved him from its consequences by giving timely warning or stopping the car. If his position on the hub was a perilous one, as to which we express no opinion,-it was not the peril of that position, certainly not that peril alone, from which he lost his life. He was not struck while standing upon the hub, but while he was voluntarily and deliberately engaged in the very negligent act of getting down backward from the hub toward the track without even looking to see if a car was coming. There was no evidence in the record tending to prove that the motorman saw, or could have seen, Carey start to step down from the hub of the wagon toward the track in time to stop the car before it struck him or to give a more timely warning than the whistle, which he blew. Under these circumstances with clear proof of this distinct act of negligence on his part contributing directly to the accident, it would have been improper for the learned judge below to send the case to the jury to permit them to engage in speculation as to whether or not Carey would have been in peril if he had remained on the hub, or whether he could not have stood up in safety in the intervening space between the wagon and the railway track, as the car passed by. The record also contains an exception to the rejection of certain testimony offered on behalf of the plaintiff's touching the measure 3. One in charge of a locomotive must, upon seeing a person in the act of going upon the track in front of it, do all in his power, and use all appliances at hand, promptly and in proper order, known to prudent and skilful engineers, to stop the engine, not only with a view to avoiding an injury, but to preventing an aggravation of it. Same good faith. 4. Good faith and honest intention are not available to refute an imputation of negligence on the part of one in charge of a locomotive in failing to avoid a collision with one on the track in front of it. Same warning signal. 5. The court will not determine, as matter of law, whether or not it is the duty of one in charge of a locomotive, upon seeing a person in the act of going upon the track in front of it, to sound a warning signal in addition to endeavoring to stop the engine to avoid a collision with him. Railroad person on track - duty. 8. The liability of a railroad company for injury to a person seen in a position of danger on the track in front of an approaching engine depends, not upon failure to stop the engine as soon as it might have been done, but upon failure promptly and in order to use every appliance at hand known to prudent and skilful men, likewise employed, to stop it, or to give warn ing, if the circumstances require it. (December 19, 1907.) APPEAL by defendant from a judgment. of the Circuit Court for Morgan County in plaintiff's favor in an action brought to recover damages for the alleged negligent killing of her intestate. Reversed. The facts, as stated upon the former appeal, were as follows: That Lawrence, the deceased, was an employee in the defendant's yard at Decatur or New Decatur, whose business it was to make up trains; that one Ben McDermott was the engineer in charge of the engine and tender which ran against deceased; that there were in the yard, the main track and some seven other side or switch tracks on the west side of the main track; that deceased was standing a very few feet on the east of the main track, with a switch list in his hand, at the time McDermott was coming south down the main line with his engine and tender attached, the tender running foremost, moving at the rate of some 6 miles an hour; and that deceased,-as McDermott testified,-when the tender was within 3 or 4 feet of him, made a movement from the place at which he was standing, which was a safe one, towards the track down which the engine and tender were coming, and ran and jumped on the track, was knocked down, or fell, was caught under the tender and rolled some distance down the track. When taken out, as other evidence shows, he was so badly injured, he died soon afterwards. The theory of the complaint is that the death was not caused by knocking deceased down, for, as contended, his death was not caused by that act, but came from his after- | gence the injury is ascribable for its proxiwards being rolled over or pushed along the track by the moving tender; that the engineer discovered his peril, but failed to reverse his engine, sand the track, and apply the brakes soon enough before deceased was knocked down but not killed, and, by reason of such failure, and a failure to use preventive means afterwards, the deceased was dragged and fatally injured. Messrs. J. M. Faulkner, George W. Jones, and John C. Eyster for appellant. Messrs. E. W. Godbey and W. W. Callahan for appellee. mate cause, the fundamental principle in the law of negligence to liability, viz., proximate cause, would be denied effect. Of course, we do not intend to be understood as asserting that contributory negligence may not intervene to bar a recovery when subsequent negligence is pleaded to fix liability. But we do propose to hold that, to constitute contributory negligence to defeat a recovery, it must be such negligence on the part of the injured party as is subsequent to, or concurrent with, the subsequent negligence of the party charged. For instance, if, after the injured party and the party charged have McClellan, J., delivered the opinion of become aware of the imperiled situation of the court: the former, the former fails to conserve his own safety as due care and diligence require, and this negligence on his part is subsequent to, or concurs with, that of the party charged, and the injury proximately results therefrom, the negligence of the injured party is contributory, and he cannot recover. These propositions are sustained by the fol Brown, 121 Ala. 221, 25 So. 609; Central R. Co. v. Lamb, 124 Ala. 172, 26 So. 969; Louisville & N. R. Co. v. Webb, 97 Ala. 308, 12 So. 374; Louisville & N. R. Co. v. Hurt, 101 Ala. 34, 13 So. 130; Alabama G. S. R. Co. v. Burgess, 116 Ala. 509, 22 So. 913; Johnson v. Birmingham R. Light & P. Co. 149 Ala. 529, 43 So. 35; Central R. Co. v. Foshee, 125 Ala. 226, 27 So. 1006. If the contention of appellant's counsel is that initial negligence is contributory negligence barring a recovery, unless the injury is wantonly or wilfully inflicted, that one who is primarily in fault in placing himself in a position of peril cannot recover for an injury suffered, unless the injury is the proximate consequence of the wanton or wilful misconduct of the party charged, the insistence is answered and refuted in the au The salient facts of this case may be found set forth in Louisville & N. R. Co. v. Banks, 132 Ala. 471, 31 So. 573. It was then ruled that the complaint charged simple negligence only, and, on the succeeding trial below, it does not appear to have been altered in that respect. Since Lawrence, the intestate, was palpably guilty of initial neg-lowing authorities: Louisville & N. R. Co. v. ligence in heedlessly stepping on the track in front of the approaching engine (we include the attached tender in the term), the only theory on which plaintiff could recover was that afforded by the asserted subsequent negligence of Engineer McDermott resulting in the fatal injury of intestate after he passed beneath the engine. And to sustain this theory it was incumbent upon the plaintiff to establish to the reasonable satisfaction of the jury, first, that, after becoming aware of intestate's peril, the engineer failed to exercise due care and diligence to stop the engine and avert injury to him; and, second, that as the proximate consequence of this negligence, if found, Lawrence was injured to his death. It necessarily follows that the initial negligence of Lawrence could not operate to bar a recovery under the doctrine of contributory negligence, because the causa-thorities cited. Louisville & N. R. Co. v. tion present in his initial negligence was, in Mitchell, 134 Ala. 261, 32 So. 735, and Haley the event, interrupted by the alleged subsev. Kansas City, M. & B. R. Co. 113 Ala. 640, quent negligence of the engineer, and that 21 So. 357, asserting, if, indeed, they do, the initial negligence became the remote cause principle appellant contends for, and collator condition of his fatal injury, and the sub-ing the earlier decisions in support thereof, sequent negligence, if the fatal injury at have been many times in effect qualified in tended it, the proximate cause thereof; in respect of the necessity, in order for the other words, the burden assumed by the plaintiff, initially negligent, to recover, that plaintiff carried the obligation to remove the his injury must have proximately resulted taint of the initial negligence of Lawrence from the wilful or wanton misconduct of by sustaining to the requisite degree the the party charged. There can be no doubt, charge of the subsequent negligence of the on this record, that McDermott, the engi engineer, and also the essential condition to neer, was aware of the intestate's peril when a recovery, viz., that the fatal injury was the he saw him in the act of going upon the proximate result of the subsequent negli- track in front of the approaching engine. gence stated. If the initial negligence could The duty of the engineer was, then, to do all be invoked to defeat a recovery, notwith-in his power, to use all appliances at hand standing the subsequent negligence of the promptly and in proper order, known to pruparty charged, and to which latter negli- dent and skilful engineers, to stop the en gine, not only with a view to averting an injury, but to prevent an aggravation of it. Good faith and honest intention or belief may be potent in determining whether a wrong is the result of wilfulness or wanton ness; but it is not availing to refute an imputation of negligence, because, while good faith and honest intention or belief must characterize the performance of the duty, it is the act itself, and not the intent, that denominates acts or omissions as negligent. Authorities supra; Birmingham. R. & Electric Co. v. Pinckard, 124 Ala. 372, 26 So. 880; Bessemer Land & Improv. Co. v. Campbell, 121 Ala. 50, 77 Am. St. Rep. 17, 25 So. 793. to conserve his own safety, the defendant would be liable, because the only possible purpose in signaling is to warn, and thereby call upon the imperiled party to take up his duty to save himself; and, if a reason. ably prudent engineer would have, from the circumstances and situation presented to this engineer, concluded that the stage for the warning to conserve its purpose had passed, or would probably do so before the warning could be given or become effective by action by the imperiled party, then it was the duty of McDermott to have foregone it, and have, instead, directed his ener gies and time to stopping the engine. Under our lax rule for ordinary averments of negligence, the first count is sufficient; and those counts predicating liability upon alleged subsequent negligence of McDermott seems to have been amended to sufficiency. Where the count undertakes to set forth the facts leading to asserted liability as for subsequent negligence, it must appear from them that the party charged, his agent or servant, knew of the perilous situation of the injured party, or that by his conduct he was probably about to become imperiled; that the party charged was negligent in the performance of his duty to avert Though this was the engineer's duty, we cannot affirm, as a matter of law, that it was or was not his duty, as well, to expend his energy and time in giving the warning signal, that Lawrence, then imperiled or about to become so, might bring into play his powers to conserve his own safety. That was a condition of negligence vel non of the engineer, and whether he was so or not was an inquiry for the jury under all the circumstances of the event. It is conceivable that the moments vital to life or limb might be vainly wasted by the devotion of energy and time to signals, rather than to the applica-injury to him; and that the injury comtion of agencies at hand to stop a moving engine. But it is also clear that an engineer in charge of an engine moving toward one in peril does not perform his duty if he gives no warning signals to awaken or quicken the party in peril to the natural impulse, as well as the legal duty, to conserve his own safety, unless it was reasonably apparent from the situation presented to the engineer as one ordinarily prudent and skilful in that station that to warn would be unavailing. Whether, in this case, the engineer, as a reasonably prudent and skilled operative, was or was not negligent in sounding the alarm as and for such time he did was for the jury, with the burden to establish it to their reasonable satisfaction resting on the plaintiff. If the proximity of the intestate to the moving engine was such as to hold out no reasonable hope to a reasonably prudent and skilful engineer that the intestate would not be stricken before the warning could be given, or that by devotion of time and energy to signaling that the danger to him would be irretrievably enhanced without justifying a reasonable belief that, though warned, the intestate could, before being struck by the engine, exert his powers to conserve his own safety, that would be negligence; and if delay in the application of the agencies to stop the engine, under these circumstances, resulted in the fatal injury to intestate, and the injured party was not derelict in his duty plained of was the proximate consequence of such negligence. The trial court properly, in many special charges given for defendant, instructed the jury that, if the fatal injury was produced by the impact or contact of the engine with the body of Lawrence before, by the exercise of due care and diligence, the engine could have been stopped after the engineer became aware of Lawrence's peril, or impending peril, then the plaintiff could not recover. It may also be otherwise stated that, unless the jury, from a consideration of all the evidence, were reasonably satisfied that the engineer knew of the peril, or impending peril, of Lawrence, and, after that knowledge, failed to exercise due care and diligence to avert the injury to him; and the fatal injury proximately resulted from that negligence, the plaintiff cannot recover. And again, if, from a consideration of all the evidence, the jury are not reasonably satisfied that the fatal injury was produced by the engine after it should have been stopped by the exercise of the care and diligence stated, the plaintiff is not entitled to recover. Of course, if no agency or power known to prudent and skilful engineers could have availed to stop the engine sooner than it was stopped, then the engineer was not negligent, and the defendant is not liable. As indicated by what we have said, the judgment must be reversed. The court, in its oral charge, said: "If you find that the engine was not stopped en in open court. city of Fredericksburg, it appears that, on that, on the 1st day of November, the pris the 21st day of March, 1907, the prisoner oner was brought before the corporation was sentenced in the corporation court of court of the city of Fredericksburg and the city of Fredericksburg to a term of placed at bar in the custody of the sergeant, eight months in the jail of that city for an and his counsel moved the judge of the court unlawful assault; that, on the 10th day of to rehear the evidence before the mayor on August following, counsel for the prisoner which the prisoner had been convicted by moved the court to suspend the sentence and the mayor; but this motion was either withjudgment against the prisoner, and, upon drawn, or the court refused to consider it, the hearing of this motion, the court grant- except in the nature of an appeal from the ed it, and allowed the sergeant (who is the decision of the mayor's court, and, upon the jailer) of the city to permit the prisoner to hearing, it was held that the prisoner "had leave the confines of the prison and to go violated the terms of his parole of August at large, the motion being granted, it 10th," and the court "remanded the prisonwould seem, because the prisoner's health re- er back to jail in charge of the sergeant to quired that he should be permitted to have serve out the balance of his term of imprisfresh air and outdoor exercise; that, on the onment of March 21, 1907, where he has since 28th of October, 1907, the prisoner was tried been, and is now kept, in obedience to the orbefore the mayor of the city of Fredericks-der of the judge of the corporation court givburg on a charge of fighting, and was found guilty and sentenced to pay a fine of $5 and the costs of the prosecution, which he immediately paid, and, upon the suggestion of the attorney for the commonwealth that the prisoner was out of jail on probation, he was, by the mayor, remanded to jail to await the action of the corporation court; imprisonment by virtue thereof, but has violated or failed to perform the condition, conditions, or any of them, the pardon, in case of a condition precedent, does not take effect, and, in case of a condition subsequent, becomes void; and the criminal may thereupon be rearrested and compelled to undergo the punishment imposed by his original sentence, or so much thereof as he had not suffered at the time of his release. The case before the court, however, was one in which the convict had been sentenced for life, and the question, therefore, whether the time which he was out on parole was to be deducted from the term of the sentence, could not have well been open for decision. It was held in People v. Potter, 1 Park. Crim. Rep. 47, that, upon breach of the condition of a pardon, the convict might be compelled to undergo so much of the original sentence as he had not served at the time of receiving the pardon. To the same effect is State v. Chancellor, 1 Strobh. L. 347, 47 Am. Dec. 557. The term of imprisonment in the jail of the city of Fredericksburg for eight months, as above stated, began on the 21st day of March, 1907, and expired at 12 o'clock midnight on November 20, 1907. Therefore, if he was not legally restrained from and after 12 o'clock midnight November 20, 1907, he conditional pardon. To the same effect is Com. v. Haggerty, 4 Brewst. (Pa.) 326. In State ex rel. O'Connor v. Wolfer, 53 Minn. 135, 19 L.R.A. 783, 39 Am. St. Rep. 582, 54 N. W. 1065, where the main question was whether a person who has been discharged on conditional pardon can be recommitted to the state prison without any hearing or adjudication, the court said: "It is, of course, well settled that, if a person be pardoned upon a condition, either precedent or subsequent, which he neglects to perform, the pardon is void, and he may be remanded to suffer his original sentence; but, upon the question whether he has neglected to perform the condition, and is therefore liable to be thus remanded, he is entitled to a hearing and adjudication." In Neal v. State, 104 Ga. 509, 42 L.R.A. 190, 69 Am. St. Rep. 175, 30 S. E. 858, where a suspension of the enforcement of a sentence was attempted to be made by the court, which was beyond its power, it was held that the time during which the convict was at liberty by virtue of such attempted suspension was not to be counted in diminu be counted from the time of the reception wording described the term as to "begin and of said defendant in the chain gang under this sentence and judgment." In People v. Potter, 1 Edm. Sel. Cas. 235, it was held that the breach of the condition left the criminal in the same situation of his sentence, especially where the tion that he was in before the pardon. So. in State v. Addington, 2 Bail. L. 516, 23 Am. Dec. 150, it was held that the failure to perform the condition of a pardon which requires the criminal to leave the state forfeits the pardon, and the original sentence may then be enforced. To the same effect is Ex parte Marks, 64 Cal. 29, 49 Am. Rep. 684, 28 Pac. 109. And in State v. Smith, 1 Bail. L. 283, 19 Am. Dec. 679, the same was held where the prisoner returned before the time permitted by the In Arthur v. Craig, 48 Iowa, 264, 30 Am. Rep. 395, where a pardon contained a provision that, upon breach of its condition, the party should be liable to arrest for the remainder of the term for which he had been sentenced, it was held valid; and, upon breach, it was said that the legal status of the petitioner was to be regarded the same as it was before the pardon was granted. |