Appellee's complaint is set out in the report of the case. It will be noted that the allegation is, in substance, that defendant, in the nighttime, obstructed the highway by placing box cars across the same, and that the automobile in which plaintiff was a passenger ran against the cars, whereby he was injured. The complaint appears to proceed upon the theory that the derelictions of the defendant particularized therein in and of themselves, that is, without further statement or qualification, constituted actionable negligence. Well-considered adjudications in other jurisdictions hold to the contrary. The rule is that, in the absence of statutory requirement, *Page 615 the mere leaving of a train across the highway without lights or other signals to disclose its presence there is not per se negligence, and that, as for injuries received by running into the train, the obstruction of the highway is not to be considered as the efficient cause of such injuries, but merely as a condition which in and of itself furnishes no cause of action, and the fact that the condition of obstruction is unreasonably prolonged makes no difference in the application of the rule. The rule sanctioned by the authorities to which we have referred is that, in order to charge the railroad with negligence in such a case, it must be shown that defendant's employees in charge of the train, in the exercise of reasonable care, ought to know that on account of darkness the cars upon the crossing are such an obstruction that people traveling along the highway in automobiles properly equipped with lights and carefully operated at a reasonable rate of speed would be likely to come into collision with them; in other words, the employees of the defendant, in the absence of some peculiar environment, are justified in believing that travelers in automobiles properly lighted and driving at reasonable speed will observe the cars upon the crossing in time to avoid coming into collision with them. It can hardly be contended with reason that the precautions in respect of which, according to the complaint as thus far stated, the defendant failed in its duty, would be necessary in the daytime. It would seem to be a reasonable corollary that on any occasion, day or night, when the occupation of the crossing would be visible to a traveler using such care for his own safety as the employees of the railroad have a right to presume he will use, in time to allow the traveler to stop before coming into collision with the cars, the railroad ought not to be held liable. Trask v. Boston Maine, 219 Mass. 410, 106 N.E. 1022; McGlauflin v. Boston M. R. Co., 230 Mass. 431, 119 N.E. 955, L.R.A. 1918E, 790; Gilman v. Central Vermont R. Co., 93 Vt. 340, 107 A. 122, 16 A.L.R. 1102; Gage v. Boston M. R. R., 77 N.H. 289, 90 A. 855, L.R.A. 1915A, 363; Orton v. Pennsylvania R. Co. (C.C.A.)7 F.2d 36.
But the complaint concludes with an allegation that plaintiff's injuries were proximately caused by the negligence of defendant's agents, etc., while acting in the line of their duty, etc., in this, "that said agents, servants, or employees negligently obstructed or blocked the crossing on said highway," and, under our decisions, this general allegation, in connection with what precedes it, is sufficient to put defendant to its defense, for, in some circumstances, to obstruct a highway without signals of some sufficient sort to warn travelers may constitute negligence. There was, therefore, no error in overruling the demurrer to the complaint.
Considering now the evidence, which is reported in full in the bill of exceptions, we conclude that under the law as we find it stated in the authorities cited — and we find none to the contrary — plaintiff was not entitled to recover. Plaintiff was traveling along the Bankhead highway from Jasper to Carbon Hill about 10 o'clock at night. The night was dark and it had been raining — maybe was raining at the time. At and near the place of the accident the highway is parallel with the railroad for some distance. A spur track, leading off to a mine, crossed the highway at grade. Cars were standing on the spur track beyond the highway, waiting to be picked up by a train. Defendant's train backed into the spur to make connection with the cars there and came to a standstill across the highway. As soon as connection with the cars on the spur was established and the conductor had "checked" the cars, the train moved out to the main line. The undisputed evidence was that the automobile ran into the train within a minute and a half or two minutes from the time it stopped across the highway. Plaintiff was on the front seat of the automobile with the driver. He testified that he did not see the cars until he was about three feet from them. At that moment the driver attempted to turn to the left, with result that plaintiff was thrown out of the automobile and against the cars. Why the driver — or, for that matter, the plaintiff, though we do not charge him with contributory negligence — did not see the cars standing across the highway, does not appear. The driver did not testify. The automobile, according to plaintiff's guess, was traveling about 15 miles an hour. Whether it had lights or not does not appear. An employee of defendant, who was squatting down on the opposite side of the train adjusting the brake couplings, saw the automobile approaching. Why the driver did not see the train does not appear. That the environment was such that he could not see the train until so close at hand as that he could not avoid a collision does not appear. There was no light, no flagman, nor any signal to notify the driver of the presence of the train; but whether the situation was such that the trainmen ought, in the exercise of due care, to have been aware that a reasonably careful driver on the highway would likely not see the train, is by the evidence left to mere conjecture. The burden was on plaintiff to prove negligence on the part of the trainmen in the respect we have undertaken to state. In this the plaintiff wholly failed and defendant was entitled to the general charge.
The jury, after having had the case under consideration for some time, and evidently apprehending the difficulty of defining negligence in the situation presented, returned to the courtroom with a request for further instruction. Thereupon the court read to them section 9952, Code 1923, as explaining the law of the case. This section *Page 616 has reference to the duty of the engineer having control of a locomotive on a railroad as to ringing the bell or blowing the whistle on a moving train when approaching a public road crossing (and at other named places), but has nothing to do with the question of alleged negligence in allowing a train to remain stationary across the highway. The statute may have added to the confusion in the minds of the jury. It does not define the duty of a railroad in a case like that presented by the record.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.