It may be conceded that plea 3 attempts to set up the independent negligence of the intestate instead of imputing to her the negligence of the driver of the vehicle, but, if such is the case, it possesses numerous and sundry defects, and the plaintiff's demurrer thereto was properly sustained. In the first place, the plea is in the alternative as to the intestate's neglect of duty as to what she should or could have done to have conserved her safety, and one alternative, at least, is a mere conclusion of the pleader; the chain should be tested by its weakest link upon demurrer.
Again, the plea fails to set up any facts from which the duty arose upon the part of the intestate to warn the driver or to protest against his going forward. It avers that the intestate "saw the said track of the defendant for a considerable distance ahead, a distance sufficient to permit the stopping of said automobile before going on said track, and defendant avers that plaintiff's intestate became aware of the fact that a train was approaching said crossing or said track at a said time when there was ample time to permit the stopping of the said automobile from going upon said track," etc. The plea further avers:
"That the view of said track in the direction of the approaching train was so obstructed that the train approaching from that direction could not be seen by a person on the road going the direction plaintiff's intestate was going at said time, without stopping a few feet distant from the track."
While the plea charges that the intestate became aware of the fact that the train was approaching the crossing, it does not charge that she saw same, and the last-quoted part of the plea would negative the fact that she did see the train, as it charges that it could not be seen unless the vehicle stopped a few feet distant from the track, and there is no averment that it so stopped. Therefore, if she did not see the train, how did she become aware that it was approaching the crossing at the time she should have given the warning? Did she hear it approach; if so, how far away was it, a mile, half mile, or at such a point as to make it within a dangerous distance from one attempting to cross? The plea does not charge that she was aware of the approach of the train at such point or place as to render it dangerous for one to attempt to cross the track. Birmingham R. R. Co. v. Demming, 3 Ala. App. 359, 57 So. 404. (See plea 10.) This case was recognized by this court wherein the plea was distinguished in the case of Hambright v. Birmingham R. R., 77 So. 702.5 In pointing out the foregoing defects to the plea, which fully justified the ruling of the trial court in sustaining the demurrer thereto, we do not wish to intimate that said plea was not subject to other grounds interposed, or that it was not involved, contradictory, and misleading.
Whether or not this was such a crossing that the statutory signals required would not have sufficiently conserved the safety of the traveling public, and that the defendant was therefore under a legal duty to maintain additional warnings or signals, we need not decide, for the reason that this defendant erected and undertook to maintain an automatic gong to warn travelers upon the highway of the approach of trains at this crossing. Therefore one who knew of this gong had a right, to some extent, to rely upon its being rung or its failure to give a warning, and after the defendant placed the same there it was its duty to keep it in a working condition, or else give notice in some way that it was out of repair or was not working, and its failure to give warning was a circumstance for the jury as bearing both upon its negligence and the conduct of the driver. See note L.R.A. 1916D, 788; 22 R.C.L. p. 1014, § 274. Wetzel, the driver, was engaged at the time in the jitney transfer business, and testified that he was acquainted with the crossing. Photographs also seem to have been used upon the trial showing the nature of the crossing and the gong in question, and it was for the jury to determine whether or not said driver knew of the gong and had the right to rely upon same to any extent, and whether or not its failure to sound was the proximate cause of the accident. In other words, the jury could have inferred that if the gong had sounded the driver may not have proceeded across the track. We cannot, therefore, say as a matter of law that the failure to sound the gong was the proximate cause of the collision, because the driver may not have acted entirely and exclusively upon the failure of the signal, as he stopped and looked and listened and acted upon his own subsequent survey and observation. In stopping and looking and listening he did no more than his legal duty, as the existence of the gong relieved him from resorting to other means of ascertaining that the way was clear and safe; and we cannot say, as a matter of law, that the failure to sound the said gong was not the *Page 295 proximate cause of the injury simply because the driver may also have acted after his own observation. He may have acted upon his own observation to some extent, yet, if the gong had have sounded as it should have done, he may not have proceeded until the danger was over and may have remained where he was until after the train passed the crossing, notwithstanding he did not and could not see and hear it when he looked and listened. True, if the driver knew that the gong was out of repair and was not working, he had no right to rely upon same to any extent; but there is no evidence that this driver knew that the gong was not working at this time. The trial court did not err in refusing the defendant's requested charge 8, which was an attempt to eliminate the failure of the gong to sound as proximate negligence, as this was a question for the jury. In discussing this question and the conduct of the driver in response to the contention that he did not proceed upon the action or nonaction of the gong, and that its failure to sound did not and could not have controlled his conduct, and was not, therefore, the proximate cause of the injury, it must not be understood that it can have a material bearing upon his tributory negligence as imputable to the plaintiff's intestate.
The application for rehearing is overruled.
5 201 Ala. 176.