In our original opinion we stated in substance what the evidence disclosed with reference to the general use of the railroad crossing. We confined our delineation to the time the deposing witness lived in that immediate vicinity. It appears that we failed to take into account a time prior thereto during which the witness showed some acquaintance with the general use of the crossing for vehicular travel. In fairness to the appellant, we set out in haec verba some other evidence relating to this inquiry: *Page 428
"Q. How long, Ace, to your knowledge has the public been using this road here (indicating) and that road crossing to cross the tracks of the Southern Railway Company at that point? * * * A. Oh, it has been used for about fifteen years to my knowing.
"Q. Well, now does this road connect to any other highway around there? A. It goes straight through and over to the highway.
"Q. Which highway? A. Birmingham-Anniston.
"Q. That is a paved highway, is it? A. That is right. * * *
"Q. But now over on the North side of the track? A. It comes back out into the dirt road, the Lincoln Road.
"Q. The Lincoln Road, is that what they call that (indicating)? A. That is the Lincoln Road right there (indicating).
"Q. Does that road lead on up to Lincoln? A. Yes, Sir; it leads back there to the forks of the road. There (indicating) is the forks of the road.
"Q. Does it stop here at the forks of the road (indicating) or does it continue on? A. There is the forks of the road there (indicating).
"Q. Does it continue on? A. Yes sir.
"Q. Can you go on up to Lock 4? A. You can go on up to Lock 4 and on down there and cross at Embry's Crossing, cross the railroad down there at Embry's Crossing; it goes on out and hits the highway down there below Embry's Crossing. * *
"Q. And that was the only truck that used that crossing? A. The only one that went up there while I was there.
"Q. The only one that went up there while you were there was that truck that you were keeping at your house? That is right, isn't it? A. Of course, other people were driving there in automobiles.
"Q. I am asking you if that truck that you drove wasn't the only truck that you saw using that crossing during the time that you were living there? A. No; I have seen other people go across.
"Q. Well, you didn't see Mr. Johnson, did you? A. No, but others.
"Q. And you didn't see that other man down there, did you? A. No; but other people, you know, that live around there.
"Q. Now, what other people have you seen driving over that crossing? A. Oh, I don't know who they were.
"Q. You don't know who they were? A. No sir.
"Q. Were they trucks or cars? A. They were cars.
"Q. They were cars? A. Yes sir.
"Q. You mean to tell the jury that people go from the Atlanta Highway and from the Lincoln Highway along that road rather than go up this highway (indicating) and cross over at Embry's Crossing? A. I have seen people go through that road.
"Q. How many? A. I have seen a good many go through there. All I could figure out that made it, it is just a little nearer cut over to the highway.
"Q. How many? A. I would say a good many. * * *
"Q. In the time that you were living where you were living when this accident happened, how many people did you see go over there other than yourself? A. Oh, I have seen lots of them. * * * A. Oh, I reckon I have seen at least fifty cars coming in and out through there.
"Q. In the course of how long? A. During the five months."
Taking into account this additional evidence, we do not conclude that the view we expressed in our original opinion is in any manner affected. Clearly, the facts in the instant case do not bring it under the influence of the holding in Southern Ry. Co. v. Williams, 243 Ala. 429, 10 So.2d 273.
We see no good reason to make any further response to the other questions which had our attention in the original opinion.
The original opinion is extended, and the application for rehearing is ordered overruled.
Opinion extended.
Application overruled. *Page 429