ON APPLICATION FOR REHEARING.
In this case Mr. Justice Mayfield is of the opinion that there was no evidence from which the jury had a right to infer wantonness on the part of the servants or agents of the defendant. • He is also of the opinion that the injury of the plaintiff was due to his own negligence and that the evidence all shows that, after the agents or servants of the defendant discovered the plaintiff’s peril, it was too late for them to do anything to prevent the injury. He is therefore of the opinion that the defendant was entitled to affirmative instructions in its behalf as to both counts of the complaint.
2. On reconsideration of the case, Anderson, G. J., and Sayre, J., are of the opinion that the refusal of defendant’s requested charge 2 was reversible error under the authority of Bason v. A. G. S. R. R. Co., 179 Ala. 299, 60 South. 922.
3. McClellan, Somerville, de Graffenried, and Gardner, JJ., are of the opinion that the trial court should not be put in error by this court for refusing to give said charge 2 to the jury. All of the evidence for the defendant tended to show that, at no time, did the plaintiff stop, look, or listen for the approach of the *139train. On the contrary, the evidence of the defendant tended to show that from the time the plaintiff drove into the avenue upon which the injury occurred, until his horse was upon the main line of the defendant, the plaintiff traveled in a trot in the direction of the track and in disregard of the approach of the train. On that subject the fireman said: “I saw this wagon approaching when it was about 10 feet from the track (in another place he says 30 or 10 feet from the track), and the horse was in a trot, going right in the direction of the track. I did not do anything then but ring the bell. I just sat there and rang the bell. This horse and wagon trotted in behind some obstructions from me, cars and lumber and stuff that was piled there, and trotted out on the track in front of the engine. Not until then did I open my mouth to tell the engineer anything about it. The evidence shows that the “cars and lumber and stuff” which the plaintiff “trotted in behind” were cars and lumber and stuff on a side track of the defendant, parallel with the main line, and according to the evidence only a few feet from the main line. If the fireman had given the engineer notice of the approach “in a trot” of the plaintiff to the crossing, a blast of the whistle might have called the plaintiff’s attention to the approaching train, and as all of the evidence, both for the plaintiff and the defendant, showed that the plaintiff was not aware of the train’s approach until the horse Avas on the track, such a blast might have prevented the injury. They think that there was some evidence from Avhich the jury had the right to infer that the fact that the plaintiff was about to attempt to cross the track of the defendant in ignorance or in disregard of the approach of the train, was open to the observation of the fireman, and that therefore the case of Bason v. A. G. S. R. R. Co., supra, does not apply to the facts *140of this case. In other words, McClellan, Somerville, de Graffenried, and Gardner, JJ'., are not able to affirm, as matter of law, that, under all of the facts of this case, the fireman had the right to assume that the plaintiff had stopped when he disappeared behind the “box cars and lumber and stuff” on the side track. They think that, under all the evidence in this case, the question as to whether the fireman had the right to- so assume was a question of fact for the jury and not a question of law for the court.