On Rehearing.
But two questions are urged in the application for rehearing, and both relate to a finding as to what is shown by the record, and are thus stated:
‘‘The opinion in this case discloses that the court committed two errors, the first consisting in the statement that the track upon which the train was being operated at the time of plaintiff’s injury was ‘a switch track’ that intersected and crossed a public street in the city of Montgomery, where the demands of trade and public intercourse necessitated constant use of the street by the public. The second error consisted of the statement that the proposition contained in charge A refused to the defendant was fully stated in the oral charge of the court, which was in accord with this opinion.”
The undisputed evidence showed that the injury resulted from a collision between the defendant’s box car and the plaintiff’s motorcycle at the intersection of Randolph street and the tracks of the defendant in the city of Montgomery; the defendant’s engineer testifying that the switching crew had been up to the “Seaboard railroad’? to get a box car, and that the dummy was pushing the car, and one witness stated that there were several tracks and another that there were seven tracks crossing Randolph street. The train, if such it could be called, consisted of a dummy engine pushing a box car. The undisputed evidence further showed that these tracks were very infrequently used; the defendant’s engineer testifying that “they sometimes crossed- that crossing twice a week, and sometimes once a week, and that he could not remember the next time when they crossed it.” The evidence also showed that Randolph street was a public street in the city of Montgomery, and that a great many people passed along it at all hours of the day and night; that “people lived along there, and they were coming and going all the time.” The evidence also tended to show that ordinarily one could cross over these tracks along Randolph street without an element of danger. The evidence showed that plaintiff approached the track along Randolph street, and that there was a building that obstructed his view of the track up to within about 20 feet of the track. There is no evidence as to what, if any, noise there was in this locality that would have any tendency to hinder one’s hearing. The plaintiff testified that he approached the tracks along Randolph street, and that when he got in a position where he could see around the building, he came to a “practical stop,” and looked and listened, and that he did not discover the approach of the dummy and ear. There is no evidence as to the width of Randolph street, and the evidence was in conflict as to the speed of the car, and as to whether or not any signals were being given as the car and engine approached the street; that on the part 'of the plaintiff tending to show that the engine and ear were being operated at a rate of speed in violation of the city ordinances, and that no signals were being given, while that on the part of the defendant tended to show that the signals were being given, and the engineer testified that he' approached this street pushing the car at the rate of about one mile per hour, and that as he approached the street to cross it he gave the engine steam, so as to increase its rate of speed to about 3 miles per hour.
[4] "When the statements in the bill of exceptions are construed most strongly against the exceptor, they clearly sustain the conclusion stated in the original opinion. The objections urged in the application for rehearing relate to the defense of contributory negligence, which was pleaded “in short by consent,” and the burden of proof as to this issue was on the defendant. To meet this burden, to the extent of entitling it to an instruction that the plaintiff was guilty of contributory negligence if he failed to stop and *450look and listen, or to stop and listen, or to look and listen, or to stop and look, it must present a case “so free from doubt that the inference of negligence to be drawn from the facts is clear and certain.” E. T., Va. & Ga. R. R. Co. v. Bayliss, supra. Or, as has been said: “We do not think that it can justly he affirmed, as matter of law, that there is a duty to stop in all cases, but we do think that the duty exists in cases where there is an obstruction to sight or hearing, and that where the surroundings are such that hut one conclusion can he reasonably drawn, and' that conclusion is that it is negligence to proceed without halting.” (Italics ours.) L. & N. v. Williams, 172 Ala. 579, 55 South. 218.
[5, 6] It requires no argument or citation of authority to sustain the proposition that a plea which merely avers that the injury occurred at the intersection of a public highway and a railroad track, and that the plaintiff failed to stop and look and listen, would be wholly insufficient to present the defense of contributory negligence. To make such a plea sufficient, an averment that the plaintiff was guilty of negligence which proximately contributed to his injury is absolutely essential. So also the mere showing that the injury occurred at the intersection of a public highway and a railroad track, and that the plaintiff failed to stop and look and listen would be wholly insufficient to justify the court in announcing the conclusion that the party is guilty of contributory negligence, but it must certainly appear from the facts and circumstances “that it was negligence to proceed without halting,” or looking and listening.
The Supreme Court, in the Williams Case, supra, also approved the following:
“In the majority of cases, however, the question is one of fact, or a mixed question of law and fact, rather than a pure question of law.”
What was said in the original opinion in no way conflicts with the utterances of the court in the Williams Case. It was there held that where the plaintiff knew his surroundings, the location of the railroad spur track, its uses, his proximity thereto, and that obstructions prevented his seeing the moving of the train thereon, and that the noise of the mill on either side of the track would drown the noise of the approaching train, yet walked out on the track without stopping to look or listen at a point where he could see the cars approaching, before stepping onto the track, he was guilty of contributory negligence, as a matter of law. This application of the doctrine involved a finding of fact resulting from the customary or frequent use, from which the inference of negligence necessarily followed. As we have said in this case:
“From the circumstances disclosed by the evidence in this record, the inference of negligence does not necessarily arise from the failure of the plaintiff to stop and look and listen, or stop or look or listen. On the contrary, the evidence clearly shows that one could ordinarily cross the track in/ question along Randdlph street without an élement of danger from trains, and the question as to whether the plaintiff was guilty, of negligence proximately contributing to the injury of which he complains was for the jury.”
These conclusions are fully sustained by the ruling in the case of Mynning, Adm’r, v. Detroit, L. & N. R. R. Co., 59 Mich. 257, 26 N. W. 514, cited in L. & N. v. Williams, 172 Ala. 579, 55 South. 218. The Michigan case does not hold, as counsel for appellant seems to think, that it is the duty of the traveler in all cases to “stop, look, and listen,” but merely holds that a railroad track, whether it he the main line or a side track, where “the testimony tended to show that this siding was used more or less every day, and that the intestate knew that fact, and was familiar with the crossing, and had been for many years passing at the point daily,” is itself a warning of danger, and that one who attempts to cross in the exercise of ordinary care must take notice of this fact.
We adhere to the conclusion that the lav? of the case was clearly stated in the oral charge of the court, and that there is no error in the record. The .application is therefore overruled.
Application overruled.