The plaintiff's case is stated in six counts.
Counts 1 and 2 charge simple negligence in the operation of a train of cars propelled by a locomotive on defendant's railroad.
Count 3 charges subsequent negligence after the defendant's employees in charge of its train of cars became aware of plaintiff's danger or perilous position in approaching defendant's track upon which was being propelled a train of defendant's cars.
Counts 4, 5, and 6 charge that with a knowledge of the danger in which plaintiff's automobile was, nevertheless, the defendant's employees so wantonly and recklessly or intentionally ran said train of cars as that it injured plaintiff's automobile.
To this complaint was filed two pleas; the first being the general issue; the second was a plea of contributory negligence on the part of plaintiff's agent, who was driving the automobile damaged in the collision, in that he failed to stop, look, and listen before going on defendant's track at such place so that he could have a clear view up and down and along defendant's track.
These pleas were filed to the complaint as a whole and separately as to each count thereof, to which plaintiff interposed demurrers. The demurrers were sustained as to the plea in so far as it applied to counts of the complaint charging wantonness and subsequent negligence. Issue being joined on the pleadings, after rulings of the court on demurrer, there was judgment for the plaintiff, a motion for a new trial by the defendant, judgment overruling the motion, and appeal taken to this court, assigning as error the various rulings of the trial court on the pleadings, certain excerpts from the court's oral charge and written charges refused to the defendant, all of which will be noted and discussed in so far as such rulings affect the substantial rights of the defendant.
The plea of contributory negligence alleging that plaintiff failed to stop, look, and listen before going onto defendant's track, is no answer to a count charging subsequent negligence on the part of defendant's employees, nor to a count charging wantonness. Memphis, etc., R. Co. v. Martin, 30 So. 827, 131, Ala. 269; Taxicab, etc., Car Co. v. Cabaniss, 63 So. 774,9 Ala. App. 549; Brown v. Alabama, etc., R. Co., 67 So. 702,191 Ala. 500; Blalack v. Blacksher, 66 So. 863, 11 Ala. App. 545.
The court in his oral charge instructed the jury:
"The railroad, to be guilty of having inflicted willful negligence, may not have intended to hurt him, but it must have shown that reckless disregard for human life and public safety and the willingness to do that thing from which injury would probably have resulted and the injury must have resulted from it."
And:
"To be guilty of willful negligence, the railroad need not have intended specifically to injure this man, but it must have shown a willingness to do that particular thing, the probable and reasonable consequence of which would be to cause injury." *Page 283
And:
"It could not, with ruthless disregard for public safety, run its trains across that place at a higher rate of speed than is consistent with public safety, and, if it intentionally and willfully crosses that street knowing that it is frequented by passengers and is in frequent use by people in vehicles of all kinds, then, if it willfully and intentionally crosses it at a reckless rate of speed, such a rate of speed as is not consistent with public safety, it may be found guilty of having inflicted the wanton or willful injury upon plaintiff's property, and the measure of damages will be such a sum as in your judgment (you) think from the facts," etc.
The foregoing excerpts were properly excepted to. The other exceptions to the court's oral charge lack definiteness, and will not be considered.
Wantonness is defined to be the conscious failure of one charged with a duty to exercise due care and diligence to prevent an injury after the discovery of the peril, or under circumstances where he is charged with a knowledge of such peril and being conscious of the inevitable or probable result of such failure. The several excerpts from the court's oral charge above quoted are not in conflict with this rule. In crossing streets in thickly populated towns and cities where crossing the tracks is frequent by pedestrians and vehicles, including the modern means of rapid transit by automobile, the railroad still has the right of way, and those using the street must still stop, look, and listen, in order to acquit themselves of contributory negligence, but the railroad must not use this right of way in such way and manner as to show a reckless disregard of human life or of the property rights of others, but must use it with due care and diligence to prevent injury, after the discovery of the peril, or under circumstances where he is charged with a knowledge of such peril, and being conscious of the inevitable or probable result of such failure. Birmingham, etc., v. Pinckard, 26 So. 880,124 Ala. 372; Birmingham Ry. L. P. Co. v. Williams, 48 So. 93,158 Ala. 381. Without entering into a detailed discussion of the evidence, after a consideration of the entire evidence including the physical facts and surrounding circumstances, the court is of the opinion that there was sufficient evidence to justify the trial court in submitting both the question of subsequent negligence and of wantonness to the jury. That being the case, the excerpts to which exceptions were reserved are free from error.
Refused charge 1, in addition to being an argument, requires the plaintiff to continue to "stop, look, and listen." There is no such rule known to us. When a person, exercising reasonable care and prudence, approaches a railroad crossing, stops and looks and listens, by which action he ascertains that the way is open for safe passage, he is not required to continue to stop and to look and to listen, but may proceed on his way giving attention to the management of his own vehicle. Moreover, this charge ignores the counts claiming for subsequent and wanton negligence. Boyette v. Bradley,100 So. 647, 211 Ala. 370; Mobile L. R. Co. v. Gadik, 100 So. 837,211 Ala. 582.
Refused charges 2, 3, 5, 6, 7, 9, 10, 11, and 13 requested by plaintiff came under the influence of Mobile L. Ry. Co. v. Gadik, supra, and for the reasons stated in that opinion were properly refused.
What has been said above regarding refused charge 1 is applicable to refused charge 8.
Refused charge No. 4 is the general charge, and, as the evidence was in conflict as to the subsequent negligence and wanton counts, the charge was properly refused.
Besides what we have said with regard to refused charges 2, 3, 5, 6, 7, 9, 10, 11, and 13, the court in his oral charge fully covered the duties required of plaintiff to stop, look, and listen, as that rule applies to the law of contributory negligence, and the charges refused were in substance what had already been given in charge to the jury in his oral charge.
Refused charge 12 does not state the correct rule. It is not necessary to a recovery on the wanton counts that the defendant's agent or servant should have actually seen plaintiff. Should he have seen him under all the circumstances? That is the question, and this was omitted from the charge.
We are not prepared to say that the verdict was contrary to the great weight of the evidence.
We find no error in the record, and the judgment is affirmed.
Affirmed.