
    (58 South. 830.)
    No. 18,950.
    GRACE et ux. v. KENTWOOD & E. RY. CO.
    (June 4, 1912.)
    
      (Syllabus by Editorial Staff.)
    
    Railroads (§ 398*) — Collision with Person on Track — Negligence—Evidence— Sueeioiency.
    In an action against a railway company for death of plaintiff’s decedent, who was struck by a train while sitting on the track in a drunken stupor, evidence held insufficient to show that the engineer was negligent in failing to discover decedent’s situation.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. § 398.*]
    Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Geo. J. Woodside, Acting Judge.
    Action by John Grace and wife against the Kentwood & Eastern Railway Company. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    Prentiss B. Carter and M. I. Varnado, for appellants. R., C. & S. Reid, for appellee.
   PROVOSTY, J.

The plaintiffs sue in damages for the death of their son. The young man was sitting, in a drunken stupor, on the end of one of the cross-ties of the defendant’s railroad when a locomotive, drawing a log train composed of 10 cars and a caboose, came along and struck and killed him.

His injuries were on the head and shoulders, and, to outward appearance, but slight. The engineer and the fireman, though looking ahead, had failed to see him until too late to stop. The negligence alleged against the defendant company is that the young man should have been seen in time. The reason why he was not is satisfactorily explained. Owing to an intervening rise in the track, it was not possible, a quarter of a mile away, for one in the cab of the locomotive to see him where he sat. He could not have been seen even if standing, and even if in bright sunshine; whereas he was not only seated, but bent forward, with his head upon his breast, and it was dusk, and smoke, from smouldering fires near by, had gathered in the hollow where he was, and murked the atmosphere. In the words of the negro fireman, it was “just about dusk— just dark- — foggy and smoky. What you call dusk — dark, and smoky and foggy.” Whatever the legal situation might have been if those in charge of the locomotive had had a full opportunity to see the man in time to stop the train, we are satisfied from the facts that there was no such opportunity ; and that, consequently, there was no negligence.

Judgment affirmed.  