
    Clay v. Macon and Birmingham Railroad Company.
    Argued April 30, —
    Decided May 16, 1900.
    Action for damages. Before Judge Harris. Troup superior court. November term, 1899.
    J. H. Pitman, Frank Harwell, and Hatton Lovejoy, for plaintiff.
    
      Longley & Longley and L. F. Garrard, for defendant.
   Lewis, J.

There being some testimony which might have warranted the jury in finding that the plaintiff’s husband, while upon the track of the defendant in front of an approaching train, was, either from intoxication or other cause, incapable for the time being of taking the proper care for his own safety, and that the company’s servants in charge of the train, being aware of these facts in time to stop it before it struck and killed, him, failed to exercise due diligence in this respect, the case should have been submitted to-the jury, and the court erred in granting a nonsuit.

Judgm.ent reversed.

All the Justices concurring, except Fish, J., absent.  