On Rehearing. While it is doubtful whether a verdict for plaintiff under the evidence in this case could be upheld, on motion for a new trial, we are at the conclusion, after further consideration, that there was at least a scintilla of evidence that presented a jury question under the subsequent negligence count, necessitating consideration of some of the other questions presented on this appeal.
In Mobile Light R. Co. v. Logan, 213 Ala. 672, 106 So. 147, the issues embraced simple initial negligence, and also simple subsequent negligence, and it was for this reason that charge 4 in that case was properly refused.
In the light of the testimony that plaintiff warned Perkins of the approach of the train, and the testimony showing that Perkins, who was on the seat in the car by the side of plaintiff, left the car at a point between the rails of the east side track, and plaintiff's testimony that the automobile could be stopped in three feet, the question of subsequent contributory negligence was also for the jury.
On the other hand, if that phase of the testimony which goes to show that the locomotive and one passenger coach reached and passed over the crossing, and that plaintiff's automobile ran into the second coach, is true, then plaintiff was the author of his own hurt and should not recover. In these circumstances, no duty rested on Weaver to warn the plaintiff of the fact obvious to ordinary observation — the presence of the train on the crossing.
The facts presented in the case of Miles v. Hines, Director Gen. of Railroads, 205 Ala. 83, 87 So. 837, clearly differentiate that case from this. In that case, the railway consisted of a single track, and the train approached the crossing around a curve through a deep *Page 112 cut where the engineer could not see the crossing until the train, as the evidence showed, was within from 150 to 600 feet of the crossing, and the view of the traveler was obstructed by an embankment from 12 to 15 feet high and a pile of cross-ties; one phase of the evidence tended to show that the top of the train was not visible to one standing near the crossing until it was within 150 to 300 feet, and the head of the train and the automobile reached the crossing at approximately the same instant. The evidence in that case tended to show that, if the speed of the train had been slackened when it entered on the curve, the automobile would have passed over the crossing safely ahead of the train. In the instant case, the defendants' evidence shows that the track was straight as it approached the crossing for from 100 to 1500 feet, and the crossing was visible to the engineer; that the tracks were in a clear space of approximately 50 feet, and there was nothing to obstruct the view of the traveler after he came into that space. If the testimony of defendant was true, the train was on the crossing, and the head of the train was 200 feet north thereof before the automobile came in collision with the train.
The court, in dealing with the issue of subsequent negligence in the oral charge, instructed the jury as follows:
"As to the matter of subsequent negligence count in this case, that is really the issue for you to decide as to whether or not defendant was guilty of subsequent negligence at the time his injury was sustained. (1) Any negligence that occurredafter the defendant, its employes, agents or servants realizedor recognized that there was impending peril to the plaintiffin the case, and (2) such agent, servant, or employee failed touse the necessary due care and diligence so as to avoid suchimpending peril of either party, then that would be subsequentnegligence.
"Of course, the defendant's theory is this, and this is the law, that if the defendant's agents, employes or servants (3)were only required to use such diligence as a reasonableprudent man would use under the same conditions after discovery of impending peril to the plaintiff, and that such diligence was used. And the defendant, or employes, agents or servants of the road had a right to assume that the plaintiff coming toward the crossing would use the ordinary diligent care that an ordinary prudent man would use under like circumstances so as to avoid an injury. (4) The law does not require that inoperating a train that the locomotive must stop at crossings ofthis nature. The law does provide that the plaintiff and other parties may use rights of ways or highways across rights of ways, but they must exercise due care and diligence in making such crossing, that they must assume there is danger, and that if they see no danger, then they may proceed across the road, but it does not mean that the plaintiff or persons using crossings may go ahead at any time, (5) they must use diligenceand care so as to avoid injury while crossing there. I think I have made that clear to you so that you may understand just what it is, just what is required in such cases." (Italics and numbers supplied.)
The plaintiff reserved exceptions to the several excerpts indicated by italics, numbered from 1 to 5.
Some portions of this charge, notably the excerpt numbered 3, are inconsistent with the law as repeatedly declared by this court, that the duty of the engineer, after discovering the plaintiff's peril, if he did discover it, before the head of the train reached and passed the crossing in time to do so, was to do all in his power, to use all appliances at hand promptly, known to prudent and skillful engineers, to prevent injury. Louisville Nashville Railroad Company v. Young, 153 Ala. 232,236, 45 So. 238, 16 L.R.A. (N.S.) 301; Southern R. Co. v. Alsobrook, 223 Ala. 540, 137 So. 437.
This error was not cured by written instructions subsequently given at the request of the plaintiff, which set up a different rule — and the correct one — in conflict with the oral charge of the court. Clinton Mining Co. v. Bradford, 192 Ala. 576,69 So. 4.
Actual knowledge of peril is essential to liability under the last clear chance doctrine, and therefore excerpt numbered 1 asserts a sound proposition of law. Central of Georgia Ry. Co. v. Bates, 225 Ala. 519,144 So. 9; H. P. Emmett, Adm'r v. Alabama Great Southern R. Co., 226 Ala. 310, 146 So. 811.
The fourth excerpt cannot be approved, though in view of the undisputed evidence showing that it was humanly impossible to stop the train after the automobile went upon the track, no injury resulted to the plaintiff. Beavers v. Southern R. Co.,212 Ala. 600, 103 So. 887; Bates v. Louisville Nashville R. Co., 184 Ala. 655, 64 So. 298.
Some of the charges given at the request of the defendant may possess misleading tendencies, but reversible error was not committed in giving them.
Negligence was not charged in general terms, but by specific averments, and charge 31 merely conforms to the specific averments of the complaint.
The charges refused to the plaintiff were either covered by charges given, were argumentative or abstract, and were properly refused.
We have examined the several rulings on the admission and exclusion of evidence, and find nothing therein to warrant a reversal.
For the error pointed out, the application for rehearing is granted, the judgment of affirmance *Page 113 is set aside, and the judgment of the circuit court is reversed and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.