Section 170, Tit. 48, Code 1940, dealing with the "duty of engineer as to ringing bell and blowing whistle," is in the same language it was in the Code of 1923 when the case of Miles v. Hines, 205 Ala. 83, 87 So. 837, was decided. The statute as it then stood in respect to public road crossings was reproduced in the opinion. There is no conflict between that case and Atlantic Coast Line R. Co. v. Jackson, 221 Ala. 646,130 So. 388, 389. The court was there dealing with an excerpt from the oral charge of the trial court in the following language: "Now, if it was a public road then a certain duty rests upon the railroad company must approach that crossing at such a rate of speed, — it must have its cars properly equipped, and the engine, and then they must approach that crossing with their train so under control as that theymay be able to stop that train within the vision of an objectat that crossing." [Italics supplied.]
As stated in the opinion of the court, the crossing was on a straight track and the holding in that case was: "Our statute requires slowing down only at one class of crossings — acrossing on a curve where the trainmen cannot see at least one-fourth of a mile ahead. Code, §§ 9952 (5473). A crossing of this class is singled out, it would seem, not only because of the inability of the trainmen to see the crossing in time to avoid injury, but also because usually it is more difficult for the traveler to conserve his own safety by observance of due care at such a crossing. Under the evidence and under the instruction in question this class of crossing is not involved." [Italics supplied.] 221 Ala. 648, 130 So. 389.
Nor is there any conflict between Miles v. Hines, supra, and Southern Ry. Co. v. Hale, 222 Ala. 489, 133 So. 8, 9. We quote from the opinion in that case: "The crossing was not on a curve, though there was a curve some 200 or 225 feet below the crossing, somewhat obstructing the view at that point. Plaintiff's counsel cite the statute (section 9952, Code 1923) as applicable, especially to the question of speed shown to be from 30 to 35 miles per hour. But, as pointed out in the recent case of Atlantic Coast Line R. Co. v. Jackson, 221 Ala. 646,130 So. 388, following the older authority of East Tennessee, Va. Ga. R. Co. v. Deaver, 79 Ala. 216, that feature of the statute is without application to such a crossing."
The first clause of the statute, "The engineer or other person having control of the running of a locomotive on any railroad, must blow the whistle or ring the bell at least one-fourth of a mile before reaching any public road crossing, * * * and continue to blow the whistle or ring the bell at short intervals, until it has passed such crossing," is clearly applicable to the instant case, and a failure to observe these requirements would constitute simple negligence. Miles v. Hines, supra.
In the light of the many decisions of this court in respect to contributory negligence, restated in Johnson v. Louisville N. R. Co., 227 Ala. 103, 148 So. 822, I am of opinion that the plaintiff's intestate, on the undisputed evidence, was guilty of contributory negligence, which would bar a recovery as for simple initial negligence, and am further of opinion that the engineer was not guilty of subsequent negligence proximately causing intestate's death.
The truck approached the track at a slow speed and passed over the first rail in such close proximity to the approaching locomotive as that nothing could have been done to avert the collision other than that which was done. The evidence is without dispute that the alarm was sounded and the brakes applied in emergency as soon as the peril of intestate was discovered.
However, if it be conceded that there was a scintilla of evidence supporting the assertion that the engineer was guilty of such subsequent negligence, the verdict was contrary to the great weight of the evidence, and should not be allowed to stand.
I also concur in the opinion of GARDNER, C. J. *Page 192