The action is in case to recover damages for personal injuries. There are two counts in the complaint, the first averring simple negligence as the cause of the injury, and the second, that it was caused “by the gross carelessness, wantonness or recklessness,” of the defendant. The first plea of the defendant presented the general issue of “not guilty.” The second plea, that of contributory negligence on the part of plaintiff. No question is reserved as to the sufficiency or irregularity of any of the pleadings.
No recovery could be had upon the second count, except upon proof that defendant was guilty of having wantonly inflicted the injury, or of such reckless negligence, as to be the equivalent of having wantonly or intentionally inflicted the wrong.
The place where the injury occurred was within the corporate limits of the city of Talladega, but not at a public crossing, or other place of such character, or under such conditions, as that defendants were chargeable with notice, in the absence of proof of actual knowledge, that there were persons on the track at the time and place where the injury occurred, or a knowledge that injury would result as the probable consequences of any mere neglect of duty.—L. & N. R. R. Co. v. Webb, 97 Ala. 308; Ga. Pac. R. R. Co. v. Lee, 92 Ala. 262; Anniston Pipe Works v. Dickey, 93 Ala. 420-1; Chewning v. Ensley R. R. Co., 93 Ala. 29. The defendants were entitled to the general affirmative charge upon the second count.—L. & N. R. R. Co. v. Johnson, 79 Ala. 436; B. M. R. R. Co. v. Jacobs, 92 Ala. 192; H. A. & B. R. R. Co. v. Winn, 93 Ala. 308.
*408There was no error in refusing the charges requested by plaintiffs, which were predicated on the assumption that there was evidence sufficient to authorize a finding by the jury that defendants were guilty of wanton injury, or that reckless negligence which is its equivalent, and which would entitle the plaintiff to recover, notwithstanding he may have been guilty of contributory negligence.
There, was no error in refusing charge No. 2, which seems to have been copied from the opinion in the Lee Case, 92 Ala. 262, supra. As an abstract proposition of law the charge was correct, but the facts of the case did not admit of the application of the principles of law invoked, and to have given the charge probably would have misled the jury.
The evidence is in conflict as to whether the defendant was guilty of simple negligence. That offered by the defendant tended to show due observance of the statute, requiring signals to be given when passing through cities and towns, and city ordinances, regulating signals and speed of trains, and the evidence of the plaintiff tended to show that both the statute law and city ordinances were disregarded. The weight of testimony and credibility of witnesses, present questions to be determined solely by the jury. If the jury should believe the testimony of the defendant on the question of defendant’s negligence, there is an end of the case, and plaintiff could not recover. On the other hand, if the jury come to the conclusion, that defendant was guilty of negligence, which proximately caused the injury, then the question arises as to whether plaintiff was guilty of proximate contributory negligence. On this question the evidence is in conflict. The evidence of the defendant tends to show, that at the time plaintiff was injured, he was standing on the track, or walking along- the track. On the other hand plaintiff himself testified, that he was attempting to cross the track, and before stepping upon the track he both looked and listened. That towards the East, he could see up the track for some two hundred yards, and towards the West, he could see over forty yards, to a place on the track where a jet of steam from a drilling machine, was thrown upon and 'across the line of track, which shut off any further vision of the track. Plaintiff further testified that he could have heard the ringing of the bell, or blowing of the whistle, if defendant had complied with the statute, requiring signals to be given, and he further testified, that he could and would have crossed in safety, if the train had obeyed the • ordinance of the city, limiting its speed, while running with*409in its corporate limits. Here again the jury must determine what facts are true.
- At the place where the plaintiff was injured, he had no right to stand upon defendant’s track, or walk along the track. His only right was the right of crossing. If he was standing on the track or walking along it, he was a tress-passer. If he was merely crossing the track, a right he undoubtedly had in the transaction of business, and had exercised clue caution, had looked and listened and thus assured himself he could with safety venture across, and while in the exercise of the right to cross, was injured by the negligence of the defendant, the plaintiff would be entitled tc3 recover. This is the íule as declared in the case of Glass v. Mem. & Char. R. R. Co., 94 Ala. 587, and we think it a sound rule, and adhere to it.
It is contended that plaintiff ought to have gone on the west side of the steam jet so that he could have seen along the track in that direction a sufficient distance to have made sure that he could cross with safety. The soundness of this contention, depends upon the credibility of other evidence in the case. If, as testified to for plaintiff, the passenger train from the East was momentarily expected, and, according to schedule of time, none was expected from the West, and he had no information that the freight train from the West was delayed, and plaintiff took the precaution to attempt a crossing far enough on the east side of the jet, at-a point where he could see the passenger if it was approaching, and far enough away from the jet of steam to safely cross, if the train-men complied with the statute and city ordinances, as to speed and warnings, and he both looked and listened for approaching trains, and neither stood upon the track, nor walked along the track, but across the track only, then it could not be said he was guilty of contributory negligence, which proximately contributed to his injury; and if defendant was guilty of negligence in running at an unauthorized rate of speed or failed to give the proper signals or warning, and its neglect in these respects caused the injury, then plaintiff would be entitled to recover. The rules of law and city ordinances, regulating warnings and speed in cities and towns, were intended to prevent the infliction of injuries in such and similar cases.
On the other hand, if plaintiff was standing on the track, or walking along the track, and, while thus unlawfully using , defendant’s right of way, was injured, he could not recover, although defendant may have been guilty of negligence in *410tbe failure to give warnings of its approach, or to comply with the rate of speed fixed by the ordinance of the city.
The evidence shows without conflict, that defendants were not derelict in duty after a knowledge of plaintiff’s peril. The words “gross,” “reckless,” when applied to “negligence,” per se have no legal significance which import other than simple negligence or a want of due care.—K. C. M. & B. Railroad Co. v. Croker, 95 Ala. 412; 11 So. Rep. 262; L. & N. R. R. Co. v. Barker, 96 Ala. 435; 11 So. Rep. 453.
Our decisions recognize but two grades of negligence, if indeed one strictly and technically speaking can be regarded as negligence. There is simple negligence, or want of due care, which, when it is the proximate cause of injury, wilsupport an action and authorize a recovery, the party injured, not being guilty of contributory negligence. Then there may be such reckless or wanton disregard of probable consequence, known to the person guilty of the wrong, or under circumstances that knowledge of the probable consequences of his wrong doing will be imputed to the wrong doer, as to be the equivalent of a willful and intentional injury, or there may be a negligent omission of preventive effort, after knowledge of danger. Proof of the latter character of negligence, will authorize a recovery although the party injured may have been guilty of contributory negligence, unless the contributory negligence on his part is.of the same character as that of which the defendant was guilty, in which event, he would not be entitled to a verdict. The law as declared in the head notes of Ensley R. R. Co. v. Chewning, 93 Ala. 24, is correct, but the definition of the term “gross negligence,” therein given is not found in the text of the opinion, and is not to be received as a universally correct legal definition of the phrase. 16 Am. & Eng. Encyc. of Law, pp. 426-7, § 16.
In some of the charges given at the request of the defendant, the word “gross,” was used in the sense of “willful” or “wanton,” and in this respect the court erred. Charge No. 9, given for defendant, in which a rule as to positive and negative testimony is laid down was perhaps misleading, in not predicating equal means of knowledge, and the credibility of the witnesses, but there is no error in giving the charge, which would require a reversal for this cause. Ensley R. R. Co. v. Chewning, 93 Ala. 31.
"We believe we have considered every question raised by the record, or which can possibly arise on another trial.
Reversed and remanded.