I dissent from the holding of the majority in this case, and think that the trial court erred in refusing the general charged requested by the defendant. The undisputed evidence shows that the plaintiff was thoroughly familiar with conditions, that he passed up and down under the crossbar or obstruction for five or six days, and that his failure to duck or lower himself so as to avoid being hit by same was due to forgetfulness, inadvertence, or inattention, and which constitutes contributory negligence. In my opinion, the holding of the majority is in direct conflict with the case of Wood v. R. D. R. R. Co., 100 Ala. 660, 13 So. 552, and L. N. R. R. Co. v. Banks, 104 Ala. 515, 16 So. 547. While the opinion does not bring out the fact during the consideration of this case in conference, it was suggested that some of the evidence tended to show that the premises were not properly lighted at the time of the injury, but the complaint does not proceed upon this theory; and the fact that the light was not as good as usual was a stronger reason why the plaintiff should not have been guilty of inadvertence or inattention when making the trip.
McCLELLAN and SAYRE, JJ., concur in this dissent.