On former consideration of this cause, we held that the issue of contributory negligence was, under the evidence, one for the jury. The opinion in that respect was based on the cases of Sloss-Sheffield Steel Iron Co. v. Peinhardt, 240 Ala. 207,199 So. 33; Sloss-Sheffield Steel Iron Co. v. Willingham,240 Ala. 294, 199 So. 28; Id., 243 Ala. 352, 10 So.2d 19; and our finding that "there is no essential distinction between the degree of familiarity possessed by plaintiff motorist in the Willingham case and that shown in this case by plaintiff and in driving his car to the point of impact."
On reconsideration, we are persuaded that an erroneous conclusion has been reached.
The first trial of the Willingham case, supra, resulted in judgment within the statutory appellate jurisdictional limits of the Court of Appeals, and an appeal was prosecuted to that court. In its opinion the Court of Appeals (29 Ala.App., 569,199 So. 15, 23) said:
"If the plaintiff did not know that the crossing existed at the point where the collision occurred, and had no consciousness of that fact, as pointed out in the case of Seaboard Airline Railway v. Roy, supra [14 Ala. App. 202,69 So. 233], and there was no sign board at the crossing to give him notice of the proximity of the railroad and to warn him of the necessity of looking out for the crossing and he saw no train and heard no signal therefrom, then if under these circumstances plaintiff failed to stop, look and listen can it, with logical reason or common sense, be said that he was guilty of contributory negligence in coming into dangerous proximity to, or in attempting to cross over, said railroad track without first stopping, looking and listening? We think not."
On petition to this Court for writ of certiorari to review the opinion of the Court of Appeals, we approved that court's statement of the law as set out above. And although the writ of certiorari was granted, the decision was limited to the proposition stated, that the trial court erroneously charged the jury that section 9954 of the Code, Code 1940, Tit. 48, § 172 had application within the city of Birmingham, where the collision occurred. And in the Peinhardt case, reported in240 Ala. 207, 199 So. 33, this Court specifically approved the above excerpt from the Willingham case, supra.
The second trial of the Willingham case resulted in a judgment for plaintiff within the statutory appellate jurisdiction of this Court. On appeal in that case (243 Ala. 352, at page 355, 10 So.2d 19, at page 22) we said:
"Appellee's replication numbered 2 alleges, in substance, that appellant's tracks were embedded in and on a level with the paving of the street: that he was unfamiliar with the crossing, and did not know of the existence of appellant's tracks; that no stop, look and listen signs or any other sign designating or indicating the existence of said crossing or as a warning of the presence of said track or the approach of said train on said tracks appeared at this point: that said train was being backed over said crossing in the night, in a drizzling rain without lights and without being flagged across said crossing; and that he did not see or hear the approach of appellant's train to said crossing in time to avoid the collision.
"While not committing the Court to the proposition that it was necessary to present *Page 63 the foregoing facts by way of special replication instead of under a general denial of the plea of contributory negligence, we hold that such facts, if true — a jury question — did relieve the appellee from the duty to stop, look and listen, and no reversible error intervened in the ruling of the trial court. Louisville Nashville R. Co. v. Williams, 172 Ala. 560,55 So. 218; Louisville Nashville R. Co. v. Cunningham Hdw. Co., 213 Ala. 252, 104 So. 433; Sloss-Sheffield Steel Iron Co. v. Willingham, supra."
In our opinion, the foregoing is but the statement of a rule of reason and common sense.
In the instant case the plaintiff testified, with reference to his knowledge of the defendant's railroad:
"I moved to Gardendale in the fall of 1939, and moved away in the fall of 1941. At the time of this accident, I had been living at Gardendale from the fall of 1939 until May 7th, 1941, the time the accident happened. I was working a five and six day week during that period. Coming to and from work it was necessary for me to come up the Lewisburg Highway from Gardendale towards the city of Birmingham; during that time I crossed over this railroad track twice a day on each day that I worked. * * * I have come back to Birmingham at night. * * * There is a railroad along there some place, I knew it was on the hill there."
The foregoing evidence clearly demonstrates that the rule announced in the Peinhardt and Willingham cases, supra, has no application here. Under the law and facts of this case, appellee was not relieved from the duty to stop, look and listen. His failure to do so is a bar to recovery in this cause. Appellant was entitled to the general charge on the issue of contributory negligence.
The application for rehearing is granted: the cause is reversed and remanded.
Application for rehearing granted; reversed and remanded.
GARDNER, C. J., and BROWN, FOSTER, and STAKELY, JJ., concur.
THOMAS, J., dissents.