The question now argued for new trial is that the opinion did not discuss subsequent negligence. This phase of the case was not specifically called to the attention of the court, as we understood the same.
It is true that the charge of simple negligence embraced subsequent negligence (Alabama By-Products Corp. v. Rutherford, Ala.Sup., 195 So. 210;1 Boyette v. Bradley, 211 Ala. 370,100 So. 647), and the phase of contributory negligence embraced subsequent negligence. Mobile Light R. Co. v. Gadik, 211 Ala. 582,100 So. 837; Mobile Light R. Co. v. Logan, 213 Ala. 672,106 So. 147.
We have again considered the evidence by the engineer, the flagman, the fireman and the driver of the truck and cannot find that there was any subsequent negligence shown. The presence in a city of a truck and its driver, approaching a railroad crossing from a half to one block away, did not place the truck or its driver in imminent danger. No reasonably prudent person would have been impressed that a driver would fail to stop, look and listen before proceeding to this railroad crossing and the subsequent collision.
This court has held that a replication of subsequent negligence is not required to be pleaded by way of answer to an appropriate plea of contributory negligence. Mobile Light R. Co. v. Gadik, supra; Mobile Light R. Co. v. Logan, supra.
The trial court erroneously charged the jury that § 9954 of the Code had application to the present case, where the collision occurred in the City of Birmingham, as to the erection and maintenance of signs at railroad crossings. Said section has no application here in that the evidence clearly showed that the alleged accident and collision took place within the corporate limits of the City of Birmingham. Appel v. Selma St. S. R. Co., 177 Ala. 457, 59 So. 164.
The majority of the court, consisting of GARDNER, C. J., BOULDIN, FOSTER, and LIVINGSTON, JJ., are of the opinion that the question of contributory negligence was properly submitted to the jury and approve the opinion of the Court of Appeals in the case of Sloss-Sheffield Steel Iron Co. v. Willingham,29 Ala. App. 569, 199 So. 15, on that question.
THOMAS and KNIGHT, JJ., dissent, and hold that the affirmative charge on that subject was proper on the basis of the discussion of the subject by THOMAS, J., in petition for certiorari to the Court of Appeals in Sloss-Sheffield Steel Iron Co. v. Willingham (Ex parte Sloss-Sheffield Steel Iron Co.), 199 So. 28. *Page 213
BROWN, J., dissents on the basis stated by him in the case of Ex parte Sloss-Sheffield Steel Iron Co., supra.
All the Justices concur that there was error in the charge of the court giving application of § 9954 of the Code, as discussed in the opinion in Ex parte Sloss-Sheffield Steel Iron Co., supra, by THOMAS, J.
The application for rehearing is overruled.
All the Justices concur in this result.
1 239 Ala. 413.