When the case was here on a former appeal (110 Ala. 266), we had occasion to consider the question, whether pleas numbered 3 and 4, which were pleas of contributory negligence, presented a defense to the action. Our conclusion was, and it was so adjudicated, that the facts averred in .the pleas, presented a complete defense to the action. They are set out at length in the former opinion and we will not repeat them here.
At the conclusion of the evidence, the defendant requested the court to give the affirmative charge in favor of the defendant, which request was refused. We are óf opinion that the legal evidence sustains every material averment of fact set up in the plea, without conflict. Much stress in one argument of appellee’s counsel is laid upon the fact that defendant was guilty of negligence in not providing a look-out on the car that was being run upon the track which collided with the cars, one of which caused the injury to the plaintiff. The mere failure to provide a look-out constituted only simple negligence, which would have entitled the plaintiff to recover in the absence of negligence of the plaintiff which proximately contributed to his injury. We may go. further and say, that if the defendant had provided a look-out, and the look-out had seen the cars on the track, and had failed to give the signal to the engi-. neer, or the switch foreman; or if the signal had been given by a look-out and had been negligently disregarded, the said engineer, or switch foreman, not being chargeable with notice of the dangerous position of plaintiff, or that he was probably at the time in such dangerous place, the defendant would not have been chargeable with more than simple negligence, and these conditions and facts would not have relieved the plaintiff from the consequences of his own neglect. The rule is well settled upon sound principles of law, that the proximate contributory negligence of a plaintiff, will defeat a recovery based upon the simple negligence of the defendant. The only conflict we find in the evidence is *363not of fact, but one of conclusion of the plaintiff. The facts are, as shown by the witnesses for plaintiff, including plaintiff himself, that there were six or seven gondola cars on side track 3 in defendant’s yard; that plaintiff was in the employment of defendant as car inspector, and had been for five or six years ; that it was about a quarter before 7 o’clock p. m. on the 5th of November, one hour and- a half after sunset, and becoming dark, as the proof shows and the court judicially knows ; that cars were being continually run in on the tracks of the defendant at all times during the day and night, to await inspection and to remain until further needed ; “that a great many cars came in during the day,” and that he went under the cars at one end to inspect them, without giving any notice to the yardmaster, or the switch foreman, or any person, that he was going to inspect the cars, and without putting out any lamps, or signals or guard, as a warning that he -was at work under the cars ; and while so engaged, the defendant caused an engine with a car in front of it to be run in on the track which struck the gondola cars at the opposite end from where he was inspecting, and caused the injury. These áre the undisputed facts, and were properly pleaded. If these facts do not show contributory negligence as matter of law, the rule had better be abolished. True, the plaintiff alone testifies, that in his opinion, it was not dangerous to inspect cars' in this way — an opinion founded solely, it seems, .on the fact, that he had been in the habit of taking such risks and hitherto had escaped injury. Reason, common sense, the law, and all the other witnesses arrived at a very different conclusion. The conclusion of the plaintiff was not a legal fact in the case, and does not raise a conflict in the evidence. The defendant was entitled to the affirmative charge on the evidence.
Reversed and remanded.