This is the second appeal in this case. Cleghorn v. The Western Railway of Alabama; 134 Ala. 601.
Since the remandment of the cause, the complaint: has been amended by the addition of other counts. The *397same demurrers which were interposed to the original complaint were refiled to the complaint as amended. There is nothing in the counts added by way of amendment, to which the principles stated in the opinion by McClellan, C. J., on the former appeal are not applicable, and, following what was then said, and the decision of this Court, the trial court overruled the demurrers. This action of the trial court constitutes the basis of the first five assignments of error in the present record. Counsel for appellant insists upon a reconsideration of our former decision, but we are unable to see any good reason for now overruling that decision, or in departing from the principles lhid down.
The defendant filed eight pleas to the complaint as amended, the first being the general issue, and the re-' maining seven attempting to set up special matters of defense. Demurrers were interposed by the plaintiff to all of these pi (‘as, except the first, and were sustained as to all but the sixth and seventh, and overruled as to the two latter.
The matters set. up in the second, third and fourth pleas, under the doctrine laid down on the fclrmer appeal, constitute no defense to the cause of action made by the complaint. The defendant knew the intended purpose of the mail crane, its uses, etc., and furthermore, that its erection was for the convenience of the defendant and to facilitate the carrying out of the contract between the defendant and the United States Government. It does not appear that the alleged duty as to the erection of the crane, and the place of its erection, was one imposed by law, and for aught that appears such alleged duty was one arising out of a contract beneficial to the defendant, and of consequence a self imposed one.
The fifth plea undertakes to set up the defense of contributory negligence on the part of the plaintiff, and avers the facts constituting the plaintiff’s negligence to be his failure to stop, look, and listen for an approaching train before attempting' to make said public crossing. We are unable to see how the failure of the plaintiff to stop, look and listen, before proceeding to cross the railroad, contributed to the fright of the mule at seeing the *398mail crane, which did not occur, until the mule was on the crossing. This plea was clearly open to- the demurrer. So too, was the 8th plea: the averment of contributory negligence is not supported by the facts stated as constituting such negligence. That the plaintiff could by the exercise of reasonable diligence have seen “One E. E. Gibson, who- was United States Postmaster at the place referred to, at or approaching said mail crane with a hag of United States mail, which was calculated to frighten plaintiff’s mule,” is no answer to the cause of action laid in the complaint. It is not charged in the complaint that the mule was frightened by Gibson with the mail hag, but by the mail crane on which the mail bag was suspended.
Tt- was competen 1 under the issues for the plaintiff to show that the; defendant’s employes worked on the crane. The witness Cooper, who testified to these facts, further testified that he worked for the defendant and that “We (meaning defendant’s employes) erected the first mail crane under Mr. Ram Henry.' There has been a mail crane there ever since. T have seen Mr. Beasley work on the mail crane that is there now. I don’t know what he was doing'there, or who he was working for. He was working with the bridge gang on the Western Railroad, but don’t know who he was working for.” All of this was competent in evidence and to he considered and weighed by the jury as tending to show that the defendant erected and maintained the mail crane. The question, asked the witness Gox on his cross- examination and to which an objection was sustained, “Was there anything unusual about tilie mail crane?”, was not in rebuttal of any matter drawn out, on the direct examination of this witness. He had testified nothing in reference to the mail crane, and as to him the question called for new or original matter, and in this called for the witness’s opinion or conclusion. He was not asked to tell what, if anything, there was unusual about the mail crane. There was no error in sustaining the objection. . There were other exceptions taken to the court’s rulings on evidence, but we have been unable to discover any merit in them.
*399Railroad companies are required to keep their tracks and the approaches to them, at public road crossings, in good repair — Pratt Coal & Iron Co. v. Davis, 79 Ala. 308; 8. & N. R. R. Co. v. McClendon, 63 Ala. 266; Sou. Ry. Co. v. Posey, 124 Ala. 486. There was no error in giving the charge requested by the plaintiff.
The affirmative charge requested by the defendant was properly refused. There was evidence which tended to sustain the several allegations in the complaint, and the evidence on some of the material issues was in conflict.
Charge two requested by the defendant was argumentative, and for this reason, if no other, was properly refused. Charge 3 was invasive of the province of the jury. It was for the jury and not the court to say, whether, under the evidence predicated in the charge, the mule was one of ordinary gentleness. Charge 4 was also faulty in that it was invasive of the province of the jury.
For reasons heretofore stated in reference to the ruling on the demurrer to the defendant’s 8th plea, the 7th charge requested by the defendant was properly refused. The 5th and 6th charges requested by defendant are controlled by the principles laid down in the opinion on the former appeal, 134 Ala. 601, and no error was committed in refusing to give them.
We have carefulty considered the evidence in this case, and, under the rule laid down in Cobb v. Malone, 92 Ala. 630, and the cases following that one, we are not prepared to say, after allowing all reasonable presumptions of the correctness of the trial court’s ruling on the motion for a new trial, that the preponderance of the, evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. Finding no reversible error in the record, the judgment will be affirmed.
Affirmed.
McClellan, C. J., Tyson and Anderson, J. J., concur - curring.