Sharpe v. Southern Ry. Co.

Mr. Justic# Marion

(dissenting). It is alleged in the complaint that the plaintiff’s testator, while walking along the defendant’s track on a footpath at the end of the cross-ties, sat down on the end of one of the crossties for the purpose of resting, and fell asleep, and that while in that position he was negligently and recklessly run down and killed by one of defendant’s locomotives. The Circuit Judge, in passing on motion for new trial, found that the evidence tended to establish the foregoing allegations of the complaint and that plaintiff’s testator “was struck and killed by a…