Bason v. Ala. G. S. R. R.

ANDERSON, J. There was no evidence to support the willful or wanton counts of the complaint, as the crossing in question was not shown to he such a populous one as to make the manner of passing over same, •as did the defendant’s trainmen, wantonness. Nor was there any proof that the defendant’s servants wantonly or willfully ran into the automobile after a discovery ■of the plaintiff’s peril. It was a question for the jury as to whether or not the defendant’s servants • were guilty of simple, initial negligence, resulting from a failure to observe the statutory requirements as to signals before reaching the crossing; there being proof that the signals were given, but negative proof at least, that they were not given. • The defendant, however, proved, beyond dispute, its plea of contributory negligence as to the stop, look, and listen rule, and which was a complete defense to simple, initial negligence. It has been repeatedly held by this court that a party is guilty of contributory negligence if he goes upon or across a railroad track without first stopping and looking and listening for approaching trains, and this is a continuing duty. He cannot acquit himself by stopping some distance off and then going on over, but he must stop near the track; and his survey by sight and sound must so immediately precede his effort to cross over as to preclude the injection of an element of danger from approaching trains into the situation between the time he stopped, looked, and listened and his attempt to proceed across the track. — L. & N. R. R. Co. v. Calvert, 172 Ala. 597, 55 South. 812; Cen. of Ga. Ry. Co. v. Barnett, 151 Ala. 407, 44 South. 392. [303] The case of Cen. of Ga. Ry. Co. v. Hyatt, 151 Ala. 355, 43 South. 867, is unlike the present case. There the court held that whether or not it was the plaintiff’s duty to stop and look and listen, and whether or not his failure to do so was the proximate cause of the injury, was a question for the jury, under the peculiar facts in said case, as it was questionable whether or not he could have stopped, and whether or not he could have seen or heard the engine that did the damage, as it was ahead of a train and had no light, and, in fact,, it was a delusion and a snare, as the plaintiff may have seen the light on the train, and may have heard same, and yet may not have known that an unlighted engine was ahead of it. Here the evidence shows that the plaintiff could have seen and'heard the train had he stopped immediately before attempting to cross; and he could have done so. This was not a case for the jury as to subsequent negligence, as the proof does not show any knowledge on the part of the enginemen of the plaintiff’s peril in time to have averted the injury. The undisputed evidence shows that the engineer did not see the automo.bile; and, Avhile there is proof from which the jury could have inferred that the fireman saAV it some time before the collision, there is nothing to indicate that he knew that they could or would not stop until too late to prevent the collision. In other Avords, there Avas nothing to indicate that the plaintiff was in peril.- — Anniston Co. v. Rosen, 159 Ala. 195, 48 South. 798, 133 Am. St. Rep. 32. In the case of L. & N. R. R. Co. v. Calvert, 172 Ala. 597, 55 South. 812, Ave held that subsequent negligence was a question for the jury, as the evidence showed that the intestate Avas going right up to and upon the track in a top buggy, and his conduct was such as to indicate to the engineer that he Avas in [304] peril. The facts there are not set out in the opinion or report of the case, but the record shows that the intestate was driving right up to and upon the track in a top buggy. We do not wish to commend plga 6, but it is questionable as to whether or not it was subject to the plaintiff’s grounds of demurrer assigned thereto; but if there was error in overruling same it was error without injury, as the defendant was entitled to the general charge upon other pleas, regardless of plea 6. The judgment of the city court is affirmed. Affirmed. Dowdell, C. J., and Mayfield and de Craffenried, JJ., concur.