Mobile & Birmingham Railway Co. v. Kimbrough , 96 Ala. 127 ( 1892 )

STONE, C. J.

It is possible for a case to arise in which, without fault on the part of those having charge of a railroad train, it is impossible to stop the train in time to save stock found on the track. In such case it is unnecessary for the engineer to attempt to stop his train. And if in such conditions the safety of the train and of the passengers will be promoted by putting on additional steam and thus accelerating the motion, then it is the privilege, the duty of the engineer to give his train additional speed.- — E. T., Va. & Ga. R. R. Co. v. Deaver, 79 Ala. 216; Ala. Gr. So. R. R. Co. v. McAlpine, 80 Ala. 73.

There is, however, another principle to be kept steadily in view when considering the one just mentioned. The engineer must maintain a lookout, as continuously as his other duties will permit, for obstructions on the track ahead, or in such dangerous proximity as to be likely to get upon it. A failure to maintain such lookout is itself an act of negligence, if injury result from it. The liability does not necessarily commence with the first discovery of the obstruction. It dates from the time it could have been discovered through the maintenance of a proper lookout.- — M. & G. R. R. Co. v. Caldwell, 83 Ala. 196; Western Railway Co. v. Lazarus, 88 Ala. 453; E. T., Va. & Ga. R. R. Co. v. Baker, 94 Ala. 632.

The testimony in this record is not so entirely free from conflict as that it can be assumed the engineer was observing a proper lookout. That was a question for the jury to pass on. Each of the charges asked and refused is faulty, in that each ignores this necessary inquiry of fact, in stating the hypothesis on which the defendant claimed a verdict in its favor.

Affirmed.