The evidence for the plaintiff tended to show that he was accompanying his brother to the coke ovens to procure some coke, and was walking in a path which had been in frequent use by the public for a number of years, directly across track No. 4, in the switching yards used by defendant in the city of Bessemer, Ala., when he was struck by a car just as he was on the first rail of track No. 4. The plaintiff thus in the act of crossing the track on such a mission, and under such circumstances was clearly not a trespasser. Lloyd v. Cent. of Ga. R. R. Co., 77 So. 237;1 T., C. I. R. R. Co. v. Hansford, 125 Ala. 349, 28 So. 45, 82 Am. St. Rep. 241; A. G. S. R. R. Co. v. Linn, 103 Ala. 134, 15 So. 508.
Plaintiff was a child of six years of age, and therefore was not chargeable with contributory negligence. Sou. Ry. Co. v. Shipp, 169 Ala. 327, 53 So. 150.
We have therefore a case where the plaintiff was in the exercise of a lawful right when the injury was received, and of such tender years as not to be chargeable with contributory negligence.
The question of prime importance on this appeal is whether or not the defendant owed the plaintiff any duty of lookout. If the theory of the plaintiff is to be accepted, the path in which he was walking at the time across track No. 4 of the switching yards in the city of Bessemer had been used by the public for a number of years, as appears from a synopsis of the evidence found in the statement of the case, and there was also evidence indicating a rather general use by the public of the switching yards.
Speaking of this question, this court, in Duncan v. St. L. S. F. R. R. Co., 152 Ala. 118, 44 So. 418, said:
"While the track of a railroad cannot be converted into a road for ordinary travel, and the mere usage or custom of crossing the track at any particular point does not give rise to the duty to keep a lookout, yet, as said in Savannah Western R. R. Co. v. Meadors, 95 Ala. 137, 140, 143, 10 So. 142 : 'When a railroad track runs through parts of a city, town, or village, which are thickly populated, and where the demands of trade and public intercourse necessitates the frequent crossing of the track, it is the duty of those operating an engine along the track in such places to keep a lookout. This duty to keep a lookout for persons is not specially imposed by statute, but arises from the likelihood that in such places there are persons on the track, and the bounden duty to duly guard against inflicting death or injury in places and under circumstances where it is *Page 656 likely that injury may result unless care be observed. The duty arises when the circumstances exist which call for its exercise * * * and when they are known to those operating the train.' "
In the case of A. G. S. R. R. Co. v. Arnold, 84 Ala. 169,4 So. 359, 5 Am. St. Rep. 354, is the following expression which has found frequent quotation in subsequent cases:
"Precautionary requirements increase in the ratio that danger becomes more threatening."
See, also, L. N. R. R. Co. v. Webb, 97 Ala. 308, 12 So. 374; Savannah Western R. R. Co. v. Meadors, 95 Ala. 137,10 So. 141; Glass v. Memphis C. R. R. Co., 94 Ala. 581,10 So. 215; Sou. Ry. Co. v. Stewart, 179 Ala. 304, 60 So. 927; Birmingham Sou. R. R. Co. v. Fox, 167 Ala. 281, 52 So. 889.
In Sou. Ry. Co. v. Shipp, supra, the following expressions are pertinent:
"The path they were traveling at the time was one commonly used by the public, and seems to have been known as such to the agents or train crew of defendant, or at least the use was so common, long continued, and frequent as to charge them with notice. * * * The court properly allowed proof of the fact that people frequently and constantly crossed the track of the railroad at a point where plaintiff and his child were crossing at the time of the injury. While such a custom of the public to use such path as a crossing of defendant's track might not give the public or plaintiff any absolute right to cross the track, * * * yet such evidence was competent and relevant to show the degree of care required to be exercised by the defendant's agents in moving their trains across such point of its track so used by the public as this was shown to have been used, and as tending to charge them with notice of such use by the public."
We are of the opinion that the inference could have been reasonably drawn from the evidence in this case that the crossing at which the plaintiff was struck was such a place as under all the circumstances in the case made it the duty of the defendant's agents or servants to keep a lookout; and, whether the train crew of the defendant engaged in switching the cars at the time of the injury actually knew of such frequent travel, it could have been reasonably inferred that the use had been so long continued and so common as to charge them with notice thereof.
Counsel for appellant insist that, under the following authorities, the only duty the defendant owed the plaintiff arose after the discovery of his peril, and that therefore the affirmative charge should have been given the defendant. Birmingham Sou. R. R. Co. v. Kendrick, 155 Ala. 352, 46 So. 588; L. N. R. R. Co. v. Williams, 172 Ala. 560, 55 So. 218; A. G. S. R. R. Co. v. Linn, supra; Walker v. A., T. N. R. R. Co., 194 Ala. 360, 70 So. 125; A. G. S. R. R. Co. v. Smith, 196 Ala. 77, 71 So. 455.
We are of the opinion, however, considering the facts of those cases and the questions there determined, they are not out of harmony with the conclusion here reached, and the authorities herein cited in support thereof. A reading of the case of Sims v. A. G. S. R. R. Co., 197 Ala. 151, 72 So. 328, will also disclose no conflict with the conclusion reached in the instant case. We are therefore of the opinion that the affirmative charge was properly refused the defendant.
Whether or not charge 13 refused to the defendant is subject to criticism need not be determined, as we are of the opinion the substance of this charge was embraced in given charge H. Charge 16 refused to the defendant confines plaintiff's recovery to proof of subsequent negligence or wantonness on the part of defendant, and what we have herein stated sufficiently discloses that said charge was properly refused. Charges 18, 19, F, and H refused to the defendant relate to the evidence of the defendant, tending to show that plaintiff was crawling under the car at the time he was injured. The court in its oral charge expressly instructed the jury that, if at the time of his injury the plaintiff was crawling under the car, he was a trespasser, and that as a trespasser he could not recover, and the defendant would not be responsible for his injury. In addition thereto there were given charges D and I, which appear in the statement of the case. Reversible error therefore could not be predicated upon the refusal of these charges. We think this also applies to refused charge 20.
Charge B refused to the defendant was an affirmative instruction that there was no such use for a crossing by the public at track No. 4 as to place upon the defendant the duty of keeping a lookout for persons crossing there. Charge G was to like effect. What we have herein stated discloses that these charges were, in our opinion, properly refused.
There was no evidence offered by plaintiff tending to show that the bell was not rung in approaching the place where plaintiff was injured; and the evidence for the defendant is without conflict that the bell was rung at the time. If charge C is not subject to the criticism of singling out a portion of the evidence, we think its refusal could properly be based upon the fact that, under all the evidence in the case, the subject thereof was not made an issue in the cause and was therefore abstract. The same applies to refused charge D.
The complaint charges negligence in very general terms, as is permitted under our system of pleading in cases of this character.
The theory of the plaintiff was that the cars were "kicked" on the track, and that there was no one on these cars to keep a lookout. The theory of the defendant was that, if the car which injured the plaintiff was put in motion by the engine of the defendant, the cars were shoved or pushed on to the track, and not "kicked." If, however, the cars were pushed on to the track, and *Page 657 this without a proper lookout on the part of some one engaged in the switching of these cars, negligence could nevertheless be predicated thereon; and it was within the province of the jury to find that the cars were negligently pushed upon the track, although they discredited that part of the testimony of plaintiff that these cars were "cut loose" and "kicked" upon this track. Charge J was therefore properly refused.
The questions to the witness Banks, which made reference to the crossing of the path over the main line of defendant's road, were clearly to more properly place the location of the place at which the accident occurred; and, in addition to this, there was evidence for the plaintiff tending to show that the path that crossed track No. 4 ran from the end of Twenty-Fifth street across the main line of the defendant's road. Nor can we see any prejudicial error in permitting the witness Banks to testify that people lived beyond the furnaces, and there were camps for furnace employés in that direction, all of which were beyond the switching yards, but towards which the path led.
We have carefully considered the assignments of error relating to the action of the court in overruling the motion for a new trial. We enter into no detailed discussion of the evidence; suffice it to say that it has been given very careful consideration. The trial court had the witnesses before him, and an opportunity to note their demeanor upon the stand. The evidence was in conflict. Under the familiar rule stated in the leading case of Cobb v. Malone, 92 Ala. 630, 9 So. 738, we are unwilling to predicate reversal upon this action of the court.
Finding no reversible error in the record, the judgment appealed from will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.
1 200 Ala. 694.