Section 3111 of 'the Code provides: “When the tracks of two railroads cross each other, engineers and conductors must cause the trains of which they are in charge, to come to a full stop within one hundred feet of such crossing, and not proceed until they know the way to be clear; the train on the railroad having the older right of way being entitled to cross first.”
This statute as it appeared in the Code of 1867, § 1403, required these officers to come to a full stop 'within 50 feet of the place of crossing, and then to move forward slowly, the train of the elder road to have the privilege of crossing first. By the succeeding section, 1401, it was provided that if these officers failed to comply with the requirements of the preceding section (1103)- they should be deemed guilty of a misdemeanor, punishable, on conviction, by a fine of not less than $500 nor more than $1,000, and be imprisoned in the county jail not more than twelve months at the discretion of the jury trying the cause. These two sections were carried substantially into the Code of 1870, as §§ 1702 and 4257. When carried into the Code of 1886, these sections appear as § § 1115 and 1108, changed to their present form, the first prescribing 100 feet instead of 50 as the limit for stopping, and not to proceed until they ( the engineer and conductor) know the way to be clear, the latter imposing fine and imprisonment in the county jail or hard labor for the county, — one or hoth at the discretion of the jury, and, as thus modified, they appear in the Code of 1896, as §§ 3411 and 4371.
We have several times construed said § 3111. Each train, it is plain, must come to a. full stop within 100 feet of the crossing, before attempting to cross. It must not only stop absolutely, but “not proceed until they (the engineer and conductor) know the way to be clear.” The duty of ascertaining that the way is clear before *306proceeding is as obligatory as the duty to come to' a full stop. The mere stopping would not. answer the requirements of the statute, passed to prevent 'Collisions, 'if th'é latter requirement were ignored. The stopping' and tak1 ing in the situation before crossing is positively enjoined, which the employés in charge cannot avoid, without being guilty of the most culpable negligence. But these requirements are not enough. Without more, the stat1 ute would be lacking in completeness for the purposes intended. To stop anywhere within the 100 feet limit, even so close up to the crossing as just to admit of-the passage of another train without liability to 'damage, would answer the first requirement of the statute. When two trains stop within the limit, if the law did not: prescribe -which shall have the prior right of' way, there might arise contention between the two as'to that right, and damage, which the statute would render impossible, if its mandates are observed, might occur. To obviate this trouble the statute wisely prescribes that the train having the older right of way is entitled to cross first.— Birmingham Mineral R. R. Co. v. Jacobs, 92 Ala. 187. But this latter provision is not to be construed into a license to the older company itself in the exercise of this prior right to cross, to be negligent in' any particular. Although the presumption may be indulged by it, that the other company will not violate thé law in proceeding contrary to the provisions of the statute, 'Still, if the circumstances indicate that the other train-will not stop, but will proceed, the older train must 'stand still until the disobedient and negligent train has passed beyond the crossing, and left the track clear for ’it to proceed. It would not do, under such- circumstances, for the road having the older right of way itself 'to be negligent, and thereby cause a collision, and afterwards seek exemption from liability to damages for injuries inflicted, by comparing its own with the other' train’s negligence and attempt to set one off against the other. Each train may reasonably indulge the presumption that the other will comply with the mandates of the statute, but this presumption will not protect either from liability for want of care in proceeding,, when it becomes *307apparent or reasonably so, that the other train is negligent and disobedient.&wkey; B. M. R. R. Co. v. Jacobs, 101 Ala; 149; 3 Elliott on Railroads, § 1132; 3 Rap. & M. Dig. R. Law, 417, §80.
;■ It is a. matter of dispute and conflict in the evidence, whether or,not iiie-L. &.N. train stopped within, a hundred feet !■of ..the crossing, and whether or not the defendant’s train - stopped within- that limit, the contention of;.each -party-being-that'the other train did not stop — which, the defendant’s evidence rebuts — and that fertile defendant, that-its. train stopped, and there is no conflict in this fact, except that found in the evidence of one‘Capers, the -only witness introduced by plaintiff to .show that- defendant’s train did not stop, •which ‘evidence has tendencies to show that fact, so that the-question as to whether either or both of said trains stopped or not is one of -disputed fact, -proper if necessary,- for the. determination of the jury. It is also in dispute whether the L .& N. engine was first .-on the ■crossing, .and was struck by the defendant’s engine, or whether the-defendant’s engine, was the first there, and was, struck by -the L. & N. engine.
■There was. a ¡ great. mass .of evidence introduced to show- that .the; L. & N. 'was the stricken and not the striking .engine, and an equal amount, perhaps, to show the reverse of this-" — ‘that the defendant’s was the -engine that was .run against -by the L. & N. engine. The night was dark, -somewhat cloudy, without moon or starlight,-.- The defendant’s engine had no headlight, the Vfil in- its,.1-amp .having- gone out- at Ooalburg, about ten miles west; of, the crossing. For .the headlight a lantern had been placed-in the headlight case, which the evidence -tended to show, did not light up the track ahead., or-subserve the purposes of a headlight.. The train on defendant? s road,was an extra,running from Corona on the ivest - to .Birmingham on the east, and consisted of about a dozen -freight.-cars, all loaded Avith coal, besides a'caboose,-.'and.-its crew consisted of the conductor, engineer, fireman and two brakemen. The conductor at the time.-of the accident Avas on the front platform on his caboose, and the two brakemen were on the top of *308the cars, one forward and 'the other further hack. The engineer and firemen were in their proper places on tlie engine. The L. & N. train consisted merely of an engine and caboose. The conductor was in the cupola of the caboose. The brakemen were in the caboose and the engineer and fireman in their proper places on the engine — the engineer on- the right and the fireman on the left. The tracks of the two roads for several hundred feet towards the crossing were straight, and that of defendant at that point was a down grade, diminishing towards and becoming level at the crossing. There were no natural obstructions to'shut out the Anew betAveeen the two roads. It. was undisputed that none of the lights on the defendant’s train were seen by the crew of the L. & N. train prior to the collision. The fireman of the 'L. & N. was not examined, and the evidence is silent as to what, if anything, was dieovered 'by the engineer or fireman of that train, prior to the collision. Conductor Norton and the other's of the L. & N. train testified that they knew nothing whatever of defendant’s approaching train, until they heard the-signal sounded “just a thought” before the collision, and none of them actually saw defendant’s train prior tc> the collision. Norton, the L. & N. conductor, admitted that he did not look out up' the track of the Southern, at any time prior to the collision, but looked right ahead of him.
Conductor Dillard and his fireman, on defendant’s train, testified that they were aware of the approach of the L. & N. train, and saw it Avhen it emerged from the woods, from 400 to 750 feet above the crossing — as variously estimated by witnesses. The defendant’s engineer, Mosby, was advised by his fireman of the approach of the L. & N. and Dillard swore that he saw the other train coming; that it was coming pretty rapidly and was' going to run 'into his train, but he did not do anything to stop nor signal to the engineer to do so. The defendant’s train had the prior right of way.
There AArere fourteen counts in the complaint, but the plaintiff abandoned all except the first three, counting-on the simple negligence of the defendant, which counts will he set out in the report of the case. The only error *309as to rulings on these counts 'here insisted on, is the overruling of the demurrer to the first count. That count, under the rule long established and many times reaffirmed in this court, was sufficient in its averments of negligence — M. & C. R. R. Co. v. Martin, 117 Ala. 381; Armstrong v. M. St. R. Co., 123 Ala. 233 and authorities referred to in those cases.
The case was tried on the pleas of not guilty and of contributory negligence on the part of the plaintiff’s intestate. The pleas of contributory negligence state, in effect,, that the plaintiff’s intestate, being the engineer in charge of the L. & N. engine, was himself guilty of contributory negligence in failing to stop Avithin a-hundred feet of, and in proceeding over the crossing without knowledge that the Avay Avas clear, as required by statute.
The Adtal question in this case is, Avhether or not the deceased was bound under the statute to Imoto that the crossing Avas clear bef ore he undertook to cross, and not to proceed until he kneAV the Avay was clear.
The word “l'moto/’ as employed in this statute, is not of uncertain meaning. It implies that the officers in charge shall be informed, or made aware of the situation, shall be certain of or made familiar with, and not be doubtful thereof. There is no escape from the conclusion that the requirement to come to a full stop within the prescribed 100 feet of the crossing is a peremptory injunction; and in order that the danger of collisions at such crossings be made as near as possible impracticable, the mandate, of not less binding force than that of stopping, is added that they “must not proceed until they knotty the Avay to be clear.” Each is required by statute under penalty for disobedience. Gan the knoAvledge required to be had by the engineer and conductor, that the AA7ay is clear mean less than that they shall take such steps as are necessary to inform and make themselves certain, and not be doubtful of the fact? If one upon whom such a duty is imposed, takes the necessary steps to thus make himself aware of the situation at or about the crossing, and uses all diligence necessary to that end, and there is an absence of another *310train, so far as'the diligent exercise of his:'s'éhses'will discover, with’which, he may’'collide,- this 'Would be knowledge on his part sueldas the law-requires. ’ But, to acquire such knowledge, he must -exhaust all’ necessary means to make himself certain; or, in' other wards, he must exercise not'simply 'ordinary,-but the highest degree of diligence to ascertain'that the' -way is clear. This knowledge may hot imply, however,"that the way will certainly -remain clear against-, all after' occurring, extraordinary, -unanticipated and' unaseeirtainable happenings. ’ ' ! ■' ' • - ’
This statute is not merely declaratory of" the common law. Without it, the duty of the-engineer would require him to use'reasonable or ordinary' care to avoid-collision — to stop, if necessary, and not proceed until; -by 'reasonable diligence, he ascertains that he may do so-safely. If nothing more than ordinary care is required under the statute, it would seem it may as -well, for: the ends proposed, have not been adopted. ’ The legislature evidently did not deem such degree of care sufficient in such an emergency, -where the danger to iife-and property is so great, and the statutes -were passed, manifestly, ¡to impose a higher degree-of diligence-than >was;-theretofore required — extraordinary-care on the-'part of: those---running trains to prevent collisions'such as-that' with--which we deal. 'The officers upon whom the-duties imposed >by the statute are devolved, cannot neglect their discharge, without committing a penal offense and’rendering their company liable for consequent injuries.. - - ’■ .■■■■>
In speaking of the statutory duties at -a -crossing,- Mr. Elliott observes: '“The rule supported, we- think, ffiy .the weight of authority is that one who: violates-'the law is a wrong-doer; that ordinarily the - Omission -of the •statutory duty is negligence’per se, and that- whera the ’omission is established; such negligence arises as a.matter of law.” — 3 Elliott on Railroads, § 1155, n. 4 and authorities cited; 3 Rap. & Mack’s Dig. Ry. Law, pp. 511, 512. This is the doctrine maintained-by our own court. The case of R. & D. R. Co. v. Freeman, 97 Ala. 289, 297, was one where the plaintiffs intestate was killed in- a collision of the defendant company and a train of the *311B. M. R. R. Company, on which he was a brakeman. The roads crossed at right angles. While the B. M. train was crossing the track of the R. & D. road, the .train o'f the latter ran into it at or near the car on which the intestate was discharging his duties as brakeman, and killed him. The court said: “The evidence is without, conflict that the R. & D. train was not stopped within 100 feet of the crossing, as is peremptorily required by statute. — Code, § 1145 (3441 of Code of 1896). .Indeed, it was not stopped at all in its approach to the .crossing. This failure to comply with the statute was per se at least negligence on the part of those in charge of the R. & I), train, for the consequences of which that .company is ’answerable.” It was held that the general charge should have been given in favor of plaintiff, no contributory negligence of his intestate having been shown. — Ensley R. Co. v. Chewning, 93 Ala. 24.
, In the case we have, if seems to us it cannot be questioned under the uncontradieted evidence, that the defendant’s train, with which there was danger of collision with the L. & N. train, was very near at hand, and that its presence might have been ascertained by the highest degree of diligence on the part of the deceased. Indeed, it would seem that reasonable diligence might have disclosed its presence. The two engines in the bisecting trades — to repeat some of the facts already stated — were so near each other that when they started .across .they collided with great force, and it remains a disputed question, not free from difficulty to determine, which first struck the other. The L. & N. train had a good headlight, Avhicli threw a light on its track with wideming scope as it got farther aAvay from the engine. The engine on the defendant’s train had no headlight, but a very poor, insufficient substitute therefor, and the Lain Avas poorly supplied Avith lanterns, for one that bad no headlight. The train of defendant, it must be admitted under the facts of the case, made a blind approach to the crossing. But it cannot be held that the circumstances were such that one on the L. & N. train might not, in the exercise of the highest degree of diligence, have discovered its presence. It is not to be pre*312stmied, without a negligent disregard of duty on the part of the engineer and conductor on the L. & N. train, because no regular train of the defendant was due at that point, that no extra train might not be there and about to pass. The presumption should, the rather, have been indulged, that one might be there; and the omission to ascertain that fact, if the highest degree of care and diligence could have disclosed it, cannot excuse the neglect to exercise it on the part of the deceased engineer. The darkness of the night and the blind approach of the defendant’s train did not render the exercise of this diligence the less incumbent upon him, but, on the contrary, it should have quickened his diligence to ascertain iris bearings and the dangers of the situation. The engineers and conductors of each of those trains were, as we have seen by the very terms of the statute, forbidden absolutely to cross the.tracks until they knew the way to be clear for them to pass in safety. This engineer did not know that fact, bnt he proceeded to cross without knowing it and without the exercise of that extraordinary care the statute requiied at his hands. He evidently proceeded, as the evidence of the conductor tends to show, upon the appearances of the surroundings, and upon the idea that so extraordinary a thing as an extra train coming along on the other road at that hour could not happen; and beguiled thus into a sense of security, he went along, not knowing or believing that danger and death were so near at hand. That he acted in good faith we need not deny. The loss of his life in the venture he ran will attest that. His acts and not the sincerity of his purpose must determine whether he acted negligently or not. “A negligent act is none the less negligently performed, because of the good faith that.characterizes it.” If we preserve the. integrity of the statute, we see no escape from the conclusion we reach. The general charge should have been given for the defendant.
Reversed and remanded.