The appellees, Linn & Son, brought the present action to recover damages sustained by them, by the loss of one mule, injury to another mule, and the destruction of a wagon and harness. The proof shows that the injury was the result of a collision by a train of cars operated by the defendant. The proof also shows that the collision occurred at a private crossing, that is, according to the proof in this case, at a place used for crossing the railroad track, as a matter of convenience, and not as a matter of public right, nor a matter of private right. The proof is that as a crossing, at times, it was closed for weeks and months without objection or protest. That when it was unobstructed, any and everybody who saw proper to avail themselves of its accessibility and convenience, used the crossing without interference or objection, and sometimes as many as twenty wagons a day, hauling slag and cinders from the Alice. *138Furnace, crossed there. The proof shows that scattered along on both sides of the railroad track there were forty or fifty dwelling houses, and the place was a village known as Alice Furnace. The train was being backed at the time of the collision, and the speed is placed by the witnesses at from six to twenty-five miles an hour. The evidence was in conflict as to whether or not signals of the approach of the train were given, and also whether the plaintiff’s servant, who was driving the wagon, stopped and looked or listened, before driving upon the track. In its instruction to the jury, and in refusing instructions requested, the trial court proceeded upon the theory, that there was evidence of willful and intentional injury, or negligence so wanton and reckless as to be its equivalent. This is the first question for consideration. We have examined the record and have discovered no fact from which it could be inferred that defendant’s servants were negligent in the use of preventive effort after the discovery of the perilous position of plaintiffs’ team, or had any actual knowledge of the presence and peril of plaintiffs’ team in time to have prevented a collision by the use of preventive effort. Neither does the evidence show such conditions nor attending circumstances as would justify the imputation of such knowledge to those operating the train. The place was not a public crossing. It was not a street or a public thoroughfare. At times a good many wagons crossed here engaged in hauling slag and cinders from the Alice Furnace ; at other times for weeks it was closed. At no .time was it'used as a matter of right, but only of convenience. The principles which apply under such circumstances are stated in the case of Webb v. L. & N. R. R. Co., 97 Ala. 308, and authorities cited; Stringer v. Alabama Min. R. R. Co., 99 Ala. 397. We think the court erred in submitting the question of wanton negligence and willful injury to the jury.'
The statute, (Code, § 1144), requires the engineer “to blow the whistle or ring the bell, at short intervals on entering into, or while moving within, or passing through any village, town or city ;” and by section 1147 of the Code, it is declared that “A railroad company is liable for all damages done to persons, or to stock or other property, resulting from a failure to comply” with these requirements. We are of opinion that Alice *139Furnace is a village -within the meaning of section 1144 supra. The failure to observe these requirements, per se, is no more than simple negligence. — Ga. Pac. Railway Co. v. Lee, 92 Ala. 262 ; H. A. & B. R. R. Co. v. Sampson, 91 Ala. 560.
We have held that under some circumstances a person may cross over a railroad track, whenever he may come to its line, without being a trespasser in the sense in which that term is usually understood. — Stringer v. Ala. Min. R. R. Co., 99 Ala. 397, supra; Glass v. Memphis & Charleston R. R. Co., 94 Ala. 587. This rule would be especially applicable in cases like the present where it has been acquiesced in without objection. The person undertaking to cross a railroad under such circumstances is entitled to no other privileges or protection than a mere licensee. He cannot thereby impose the additional duties upon a railroad to know he is there, or to keep an especial lookout for him. All that can be required of a railroad company operating its trains over its own track, under such circumstances, is to perform its duty in looking out for obstructions, and to use due care and reasonable diligence to avoid inflicting an injury to persons after being conscious of the peril. When the railroad has done this, it has discharged its duty to the person undertaking to cross its track at such crossings. — Pratt Coal & Iron Co. v. Davis, 79 Ala. 308 ; Tanner v. L. & N. R. R. Co., 60 Ala. 621.
These principles of law embrace all questions arising from instructions given, and those refused, to which exceptions were reserved.
The court erred in not permitting the witness Mason to answer the question propounded to him. This witness had testified to all the acts done by the engineer in order to stop the train. He was an expert. Whether we regard the answer as a short-hand rendering of facts, or as the opinion of an expert upon facts stated, in either view, it was admissible.
The court should have allowed the question to the witness Wright. This witness had shown he was in a position to see both the railroad track and plaintiff’s servant. If his testimony was credible, he knew how far off the train was, and plaintiffs’ servant’s position. He could testify as a fact, whether one looking could have seen the approaching train, and whether by looking, the *140driver could have seen it, before venturing across the track. The opportunity and means of knowledge, and the credibility of the witness, and the weight to be given to his testimony could have been tested by a cross examination. — Tesney v. The State, 77 Ala. 88 ; McVay v. The State, 100 Ala. 110.
Reversed and remanded.