Pollard v. Harris ( 1935 )

ON MOTION ROE REHEARING.

The plaintiff in error has moved for a rehearing upon the ground that this court overlooked what is claimed to be undisputed and uncontradicted evidence that the deceased, before he got upon the railroad track, looked toward the train and saw it and then started across the track as if he intended to “beat” the train. Whether or not there is evidence to this effect, it is certainly not undisputed and uncontradicted. The testimony of one of the witnesses referred to in the motion for rehearing was as to facts from which it was inferable that the deceased did not see the train before he went upon the track, and it is not conclusive from this testimony that the deceased saw the train before he got on the track and tried to beat the train. This witness further testified as follows: “What did I see Mr. Harris do? He did not do nothing but came on down the street and come on across the railroad. He didn’t get across. He was coming on across there. I was on this side of railroad, I seed him coming. I waved my hand for him to'go back. Just as he got on the railroad, he made a frightened fast step to get across. After he got there, he put his left leg over the track and it hit his right leg and throwed him up against the platform.. . . When he made the fast frightened step, he was just about middle ways of the main track. He got his left leg across and it hit his right leg and throwed him up against the platform: I saw the train after it struck Mr. Harris. . . It [the track] is absolutely straight for about a mile and a half. Mr. Harris could see it for a mile or a mile and half. From the time he reached the crossing he could see that train for a mile. I knew the train was coming, and I knew Mr. Harris was coming on the track. I tried to wave him back and keep him from coming. He just kept on coming. The train hit him before he could get out of the way. Hit him right after he stepped on the railroad track. And he saw the train coming. Well—I made a statement in this case, I signed a paper for Mr. Slapback. I saw Mr. Harris as he came up on the railroad and then tried to beat the train across. After he looked down the railroad track, the train was right on him then, and when he looked down and saw the train coming, he tried to beat it across. That train was so near Mr. Harris when he went up on that railroad, it was impossible for the train to keep from hitting him.” Any statement in the testimony of any of the witnesses that the deceased before he got upon the railroad track, saw the train approaching, must necessarily be a conclusion of the witness. It is unthinkable, unless the deceased had intended to commit suicide, and there is no evidence as to this, that he deliberately walked in front of the approaching train when it was right upon him and he saw it coming. From the fact that he proceeded upon the railroad track in front of the moving train, and the fact that one of the witnesses who saw him undertook to warn him of the approaching train, it is clearly inferable that, notwithstanding he may have looked in the direction from which the train was coming, that he did not in fact see the train. The evidence therefore is not conclusive that the deceased with knowledge that the train was approaching started across the track in front of the train in an effort to “beat” the train. The motion for rehearing is denied.