The plaintiff, of course, had a right to be where he was and as he was when he was injured in consequence of his mule becoming frightened by defendant’s train. But the road along which he had been traveling and upon which it wa«, his purpose to *341cross the railway as soon as defendant’s train, or engine got out of the way, was not a public road. Therefore, defendant’s trainmen were under no duty to keep a lookout for him, but their duties in respect of him arose only after they became aware of his presence and peril. If, after becoming aware that his mule was becoming frightened by the engine, or the noises being made by the operation of the engine, they failed to use every means at hand which a man of ordinary care and prudence would have had recourse to to allay the fright of the animal, such as abating the noises, stopping the engine, that being, practicable, etc., and injury resulted from fíueh failure to the plaintiff, the defendant would be liable in damages in this action. — Glass v. Memphis & Charleston R. R. Co., 94 Ala. 581; Ala. Great Southern R. R. Co. v. Linn, 103 Ala. 139; 23 Am. & Eng. Ency. Law. pp. 744-5.
The defendant would also be liable if the trainmen, knowing of the proximity of the plaintiff with his vehicle and mule to the track, unnecessarily caused the engine to make unusual noises calculated to frighten a mule of ordinary gentleness, and such noises did frighten this mule and thereby caused plaintiff to be injured, and this, of course, though the animal gave no indication of fright prior to the noises.
Under the foregoing principles, the 4th count — the case being tried on that and the 10th count — sufficiently states a cause of action; but the 10th is bad for that it seeks, alternatively a recovery for the failure of defendant’s trainmen to know of plaintiff’s presence and peril. This count is not supported by the evidence in respect of its averments as to the character of the road which plaintiff was traveling, if these averments are to be construed are. describing a public road in the recognized meaning of those words; the sort of road as to which the statute imposes the duty of keeping a lookout upon trainmen.
There was evidence tending to show that the trainmen were negligent after discovering the fright of the mule, and from which the jury might have found that the injury resulted from such negligence but there was also *342evidence to the contrary; and that issue was for the jury.
There was also evidence tending to show that the trainmen after becoming aware of the prescnee of the mule with plaintiff in the vehicle to which it was hitched,- and before there were any indications of fright in the mule, caused the engine to omit unusual and unnecessary noises calculated to frighten a mule of ordinary gentleness, and which did frighten this mule and cause the injury complained of. Upon this it was open to the jury to find for plaintiff, though there was no pretermission of duty on the rart of the traihmen after the mule became frightened, but there was evidence to the contrary and this too was an issue for the jury. It follows that the court properly refused to give the affirmative charge requested by the defendant.
But the court’s rulings on several of the other charges requested by defendant and refused were at variance with the law as we have declared it, in that such rulings proceeded on the theory that the trainmen owed the plaintiff the duty of operating the engine with reference to his presence there though they were unaware of such presence or his peril.
Charge A given plaintiff should have measured his conduct in getting out of the vehicle by comparison with what the jury should find men of ordinary prudence would have done under the circumstances.
Charge B given for the plaintiff is also subject to criticism. Here too the standard is what a reasonably careful and prudent man considering the particular exigencies of his situation would have done. — Holland v. Tenn. Coal, Iron & R. R. Co., 91 Ala. 444; Richmond & Danville R. R. Co. v. Farmer, 97 Ala. 141; Central of Georgia Ry. Co. v. Foshee, 125 Ala. 199, 215-16.
We find no error in the rulings of the court on the admissibility of testimony.
Reversed and remanded.
Tyson, Simpson and Anderson, JJ., concurring.