There was no error in sustaining the demurrer to defendant's plea of contributory negligence numbered 11. The plea is defective in its statement of the facts. The allegation that plaintiff was laughing and talking with two negro women on his truck is an allegation of evidential fact, not the legal equivalent of an allegation that plaintiff drove upon the track without looking and listening as due care required that he should do. The gist of the plea is that plaintiff heedlessly or thoughtlessly drove upon the track. This was the allegation of a mere conclusion without sufficient supporting facts, and for this deficiency the plea was properly held bad. It was open to criticism in other respects also, perhaps, but many of the grounds of demurrer were merely general, and it is doubted that any other objection to the plea was well taken.
Pleas 12 and 13 were insufficient also. They allege in the alternative that plaintiff, being aware of his danger, heedlessly, thoughtlessly, or recklessly remained on the track in front of an approaching train. The argument and the authorities cited lead to the inference that the pleader avoided the word "negligently" because of the accepted definition of negligence as the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. It appears to be the contention of appellant that, because plaintiff in the first place put himself negligently in a position of peril, it was incumbent on him to exercise a very high degree of care to extricate himself, and no allowance was to be made for the confusion and lack of efficiency which the suddenness of his peril may have induced. In other words, to measure the defense by one of its aspects, plaintiff could not recover, though defendant saw his peril in time to have prevented it, if he failed to take such steps as reflection would have dictated. But in such cases the test is whether under all the circumstances, and in view of the sudden danger, the person injured acted as a reasonably prudent person would have acted, and this rule appears to have been applied in cases involving secondary contributory negligence. Norwood Transportation Co. v. Bickell (Ala. Sup.) 92 So. 464;1 Cook v. Central Railroad Co., 67 Ala. 533; 10 Mich. Dig. p. 569.
Under the foregoing proposition the brief groups a number of charges refused to defendant, which may as well be noticed at this point. Charge 41 was a mere argument and properly refused for that reason, if no other. Other charges in this group, charges 61, 62, 69, and D, were all properly refused because they ignored the doctrine stated in our consideration of pleas 12 and 13, or they ignored that tendency of the evidence going to sustain the charge of negligence on the part of defendant after becoming aware of plaintiff's danger.
There was no error in allowing plaintiff to show that defendant kept no flagman at the street crossing at which plaintiff was injured and that there was no flagman there at the time. It is not perceived how this testimony could have prejudiced the defense, for it excluded the idea that plaintiff may have relied upon a flagman for any warning of danger.
The testimony of the witness Phelps that he had been crossing defendant's railroad in automobiles and had seen other people going over it with automobiles, wagons, buggies, and trucks for eight years, served to show the witness' familiarity with the locus in quo of which he was speaking, and was competent for that purpose.
The ordinance of the city of Bessemer, in effect at the time and place of the accident, regulating the speed of railroad trains, was properly admitted. On the other hand, ordinances regulating the speed of automobiles were properly excluded. The element of speed in the conditions shown reflected upon the question of defendant's negligence in approaching the crossing where plaintiff was injured, but shed no light upon plaintiff's alleged contributory negligence. As to plaintiff's conduct, the question was whether he in fact went upon the railroad without exercising due care — an inquiry possibly affected by speed, but not by the ordinance — and whether, after his truck stopped upon the track, he exercised due diligence to avoid the danger.
Witness Phelps was allowed to state in a general way the frequent use of the crossing by the public, and that its use was most frequent about midday; plaintiff having been injured about 1 o'clock p. m. This was not error to reverse. The witness was subject to cross-examination, if his general statement was unsatisfactory to defendant.
It was relevant to show the nature and extent of the injuries to the truck as tending to disclose how and with what degree of force, and so with what speed, defendant's train was driven against the truck; speed being an element of the negligence charged to defendant.
We see no detriment to the interest of defendant in the court's admission of testimony showing the height of the fill on which was defendant's track approaching the place *Page 627 of the accident. In a broad sense this testimony was descriptive of the locus in quo, and tended to shed light upon the statement made by plaintiff as a witness that he looked without seeing the approaching train.
Any one who has frequently observed the operation of railroad trains may give an opinion as to whether a train under observation at a particular time was moving at a fast or slow rate of speed. Such testimony may not be worth much, but it is subject to the test of cross-examination and its value is a matter of jury decision.
Assignments of error numbered 34 to 36, both inclusive, relate to an effort to impeach the testimony of plaintiff's witness Lewis Brown by showing contradictory statements made by him as a witness on the trial of the cause in which the owner of the truck sought damages. It is only necessary to say that no predicate was laid for this proposed impeachment. Weaver v. Traylor, 5 Ala. 566; 12 Mich. Dig. subc. Witnesses, §§ 284, 296. Nothing to the contrary was said in Dominey v. Dowling-Martin Grocery Co., 200 Ala. 619, 76 So. 977, cited by appellant. There the question was as to the proof of the authenticity of the stenographer's notes. Assignments of error 72 to 78 were not argued on the original submission. In our reference to these last-named assignments in our original opinion we inadvertently fell into error. In their brief on the original submission in this cause counsel for appellant argued the assignments numbered 34-36.
The court admitted the testimony of witnesses to the effect that plaintiff was not as stout or heavy as before the accident, that he did not move as quickly, that he complained of severe headaches. It is objected that such testimony should come from medical experts; but we think no expert knowledge was necessary to the competency of the witnesses in the respect here at issue.
Plaintiff was permitted to show that the rail of the track over which he was crossing was "sticking up." This was clearly relevant and material as showing one element of the situation at the time and giving versimilitude to plaintiff's contention that his truck stopped dead on the track. That certainly had something to do with plaintiff's injury.
There was no reversible error in admitting evidence of the time when, according to schedule, the train was due in Bessemer.
Appellant says that charges GG, HH, and II, refused to it, are copies of charges pronounced good in Porter v. L. N. R. Co., 202 Ala. 139, 79 So. 605. The cases are different. Plaintiff here had a right to cross the track; the deceased in Porter v. L. N. R. Co. was a trespasser, for that he was walking along the track. In that case, also, the apparent unawareness of deceased of the train's approach was of decisive importance, for a step would have taken him to safety, and the engineer might presume he would take that step if he knew his danger; whereas, here plaintiff was trying to get his truck off the track, and if defendant's engineer discovered that by reason of his efforts plaintiff was in danger, it was the engineer's duty to so govern himself and his engine as to meet, if possible, the emergency so presented, even though it may have been apparent that plaintiff was aware of the approach of the train. These charges, therefore, were well refused.
Appellant contends that it was entitled to the general affirmative charge as to the count based on wantonness. On the evidence it cannot be said that the jury may not have found wantonness. But the insistence is that since the record does not show rulings against the sufficiency of a number of the special pleas of contributory negligence as answers to the wanton count, which pleas were challenged by demurrer, and since "several of these pleas were proven without dispute," defendant was entitled to the charge. Appellant catalogues pleas 2, 3, 4, 6, 8, 9, 10, 15, 16, and 17 in its proposition XVI, and we presume the reference in argument is to several of the pleas so catalogued. The record should show the court's rulings on these pleas as answers to the count charging wantonness, and in brief the reference to the "several pleas" appellant has in mind should be more definite. However, we have examined all pleas in the catalogue and do not find that any one of them, fairly interpreted, was proved without dispute. Stating results with reference to the salient points of those pleas: It was not proved without dispute that plaintiff went upon defendant's track without stopping, looking, or listening, or that plaintiff knew a train was approaching; nor was it without dispute in the evidence that plaintiff "negligently" failed to move off the track or so failed to make any effort to extricate himself from the perilous situation in which he was; nor did it appear that plaintiff intentionally remained on the track. All these were, under the evidence, questions for the jury; and the charge in question, even upon the assumption indulged, i. e., that these pleas were in issue, was properly refused.
Quite a number of charges, refused to defendant, are grouped under a discussion which advances the theory — as we understand the brief — that as matter of law plaintiff was guilty of negligence in failing to extricate himself from the known peril of the approaching train, and that this negligence constituted an efficient intervening and sole proximate cause of plaintiff's injury, barring his right to recover. This contention, harking back to the discussion, supra, of the demurrers to pleas 12 and 13, treats plaintiff's failure to escape as the sole cause of his misfortune and relegates all negligence on the part of defendant or its agents to the limbo of remote causes. That the jury might have reached this conclusion cannot be denied, for *Page 628 they might have found that plaintiff was negligent in going upon the track, and it seems very probable that plaintiff might have escaped had he quit his truck promptly on seeing the approach of the train instead of trying to get his machine away. But there were questions for the jury, as was the question whether, in the circumstances, plaintiff, after his machine "choked down" or "went dead" on the track, acted as a reasonably prudent man, and, further, whether defendant's engineer observed what plaintiff was about and the improbability of his escape in time to have taken measures of his own which might have given plaintiff an opportunity to escape notwithstanding his efforts to save the truck or to save himself by getting the truck off the track. Allen v. Schultz,107 Wash. 393, 181 P. 916, 6 A.L.R. 676, to which appellant refers, was a very different case. In the editorial note, however, cases are cited which support the ruling here. There is, of course, a limit to the indulgence to be extended to persons who, even without original fault on their part, linger in a place of danger to save property with the momentary expectation of success. Plaintiff's first consideration should have been his own life; but, to use the language — somewhat more elaborate than our own heretofore — of Dickinson v. Erie Railroad Co., 81 N.J. Law, 464, 81 A. 104, 37 L.R.A. (N.S.) 150, quoted in the note to Allen v. Schultz, supra:
"Where a traveler, without any fault on his part, is placed in a position of imminent peril at a crossing, the law will not hold him guilty of such negligence as to defeat his recovery if he does not select the very wisest course, and an honest mistake of judgment in such a sudden emergency will not of itself constitute contributory negligence, although another course might have been better and safer. * * * All that is required of a person in such an emergency is that he act with ordinary care under the circumstances, it being for the jury to determine whether such an emergency existed, and whether the traveler acted with due care."
See Norwood Transportation Co. v. Bickell, supra.
Charge 45, refused to appellant, laid too much stress on the individual judgment of jurors, tended to discourage consultation, and was refused without error.
We cannot say that the verdict was so palpably wrong that error should be affirmed of the trial court's refusal to grant the motion for a new trial. Cobb v. Malone, 92 Ala. 630,9 So. 738.
Finding no reversible error, the judgment is
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.
1 1 Ante, p. 232.