HARALSON, J.
In this case, on a former appeal, (92 Ala. 187), it was held, under the same state of facts, that the testimony did not tend to show that the collision was willfully caused by defendant’s servants, but that the trend of the whole testimony repelled such an inference. It was also held, that the second count did not charge willful negligence. The third count charges no more than mere negligence against the defendant. The pleas were ‘ ‘ not guilty ’ ’ and contributory negligence on the part of the plaintiff’s intestate.
The fact that the defendant’s train was not stopped, in compliance with the statute, within one hundred feet of the railroad crossing, and was run in the 'manner and at the rate of speed charged in the third count, is negligence for which the railroad company is liable. The proof tends to establish the truth of this count; and the case has been tried mainly, if not altogether, on the plea of contributory negligence.
The statute regulating the duties of railroads, when tracks cross each other, is : “When the tracks of two
railroads cross each other, engineers and conductors must cause the trains of which they are in charge to come to a full stop, within a hundred feet of such crossing, and not proceed until they know the way to be clear; the train on the older railroad having the right of way being entitled to cross first.” — Code, § 1145.
The defendant’s railroad and the Georgia Pacific track ran parallel, and fifty-six feet apart at this crossing, intei’sected by the Ensley Dummy Railway; and the Kansas City, Memphis & Birmingham Railroad ran diagonally across both these tracks, three hundred and twenty-five feet from the crossing of the defendant and Ensley Railway tracks, forming with the Georgia Pacific and Kansas City, Memphis & Birmingham Railway and the Ensley Railway, an area in the shape of a triangle, with the defendant’s railroad running across the open [157]*157end of the triangle, fifty-six feet from and parallel, as above stated, to the first named railroad. This area, as the evidence tended to show, was open, with nothing to obstruct the view, except a few scattering pine trees. It is three hundred and twenty or twenty-five feet, from the crossing, south, to the Kansas Oity, Memphis & Birmingham railroad, where it crosses the defendant’s track; and, commencing a few feet south of the K. 0., M. & B. road, there runs a cut, from five to seven and oné-half feet deep. The evidence shows, that at the time the Ensley dummy approached the Georgia Pacific road, there was a freight train on the latter road, completely blocking it up, and obscuring the sight of the crossing below and the triangular area formed by said railroads, described above. At that time, the defendant’s freight train, composed of fourteen cars, including the caboose, had stopped eight hundred and sixty-five feet from the Ensley crossing, and beyond the K. 0., M. & B. road, with its rear end, at which there was a caboose car, towards the crossing when the accident happened. It used the signal bell, as the evidence tends to show, and backed towards the crossing, having attained a speed of from 4 to 12 miles an hour, as variously stated by different witnesses, at the time it reached the crossing. Just at that moment, the Ensley dummy engine had reached and was upon the crossing, and its engine and the caboose of the defendant’s train collided, killing the engineer of the Ensley dummy, the plaintiff’s intestate. The evidence tends to show, that the train of the defendant, from the time it commenced to back towards the crossing and until the collision occurred, never halted. It was argued, that the train on the Georgia Pacific road, at the time the dummy engine approached and stopped within ten or fifteen feet of it, and the deep cut above referred to, in which the defendant’s train had stopped, shut out the sight of the defendant’s train from the dummy engine, and vice versa, so that their respective engineers and servants did not see each other, thereby causing them to be unmindful, each, of the approach of the other. We have no evidence whether the engineer on the dummy saw the defendant’s approaching train or not, further than that his engine was afterwards found to be reversed, and other persons on the dummy cars, as wit[158]*158nesses, swear they saw the defendant’s approaching train, and the passengers got off in consequence. The conductor on the dummy swears he saw the approach of the other train, when it was seventy-five feet from the crossing.
I. The plaintiff’s intestate had a right to rely, upon the performance by those on the defendant’s train, in charge of it, of every act imposed by law on them, when approaching the crossing. The presumption was, that they would stop within a hundred feet of the crossing, as the statute required them to do. It can not be imputed as negligence to him, that he did • not anticipate culpable negligence on the part of the employes of defendant. One, in the position of this engineer, called upon to exercise care to avoid danger from the acts of others, might, in regulating his own conduct, have regard to the probable or apprehended conduct of such other persons, and to the presumption that they would act with reasonable caution and not with culpable negligence. And it has been held, that one approaching a railroad crossing in a cit)*' is not bound to be on the alert for danger, when he has the assurance given, in the failure of the company to give the statutory signals, that the crossing is safe. — Beiseigel v. The N. Y. C. R. R. Co., 34 N. Y. 622; Strong v. Placerville R. R. Co., 8 Am. & Eng. R. R. Cases, 274; Bower v. Chicago, M. & St. L. R. R. Co., 19 Am. & Eng. R. R. Cases, 301. Without more than that the defendant’s servants failed to bring their train to a stop, within the distance required by law, it will be presumed the injury was caused by the negligence of defendant. — Sherman on Contributory Negligence, § 469; Huckshoed v. St. Louis &c. R. R. Co., 90 Mo. 548; Beiseigel v. N. Y. C. R. R. Co., 34 N. Y. 622.
II. But, on the other hand, all the authorities, so far as we have seen, agree, and it certainly accords with sound principle, that it was the duty of the deceased, before he undertook to cross the track of the defendant, to look out for approaching trains, and the manner ancl speed with which they might come. This was his duty, notwithstanding his train had the right of way by law, and it was culpable negligence in the defendant’s employés not to accord it to him, and he might presume they would not violate their legal obligation. He had no right to close his eyes to the approaching train, if he [159]*159was in a position to see. In the absence of all apparent danger, the deceased would not be negligent in crossing defendant’s track. He was not authorized, however, to indulge a presumption that the other company would comply with the law, in the face of facts reasonably indicating that they would not. That presumption authorized him to proceed with his train up to the danger line, which no prudent person, in the exercise of that degree of caution for his own and the safety of others entrusted to him, should cross, without being chargeable with negligence. That line lay just where a person occupying his position, observing the prudence he ought to have observed, could reasonably see that the defendant’s employes were not going to make the stop.
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HARALSON, J.
In this case, on a former appeal, (92 Ala. 187), it was held, under the same state of facts, that the testimony did not tend to show that the collision was willfully caused by defendant’s servants, but that the trend of the whole testimony repelled such an inference. It was also held, that the second count did not charge willful negligence. The third count charges no more than mere negligence against the defendant. The pleas were ‘ ‘ not guilty ’ ’ and contributory negligence on the part of the plaintiff’s intestate.
The fact that the defendant’s train was not stopped, in compliance with the statute, within one hundred feet of the railroad crossing, and was run in the 'manner and at the rate of speed charged in the third count, is negligence for which the railroad company is liable. The proof tends to establish the truth of this count; and the case has been tried mainly, if not altogether, on the plea of contributory negligence.
The statute regulating the duties of railroads, when tracks cross each other, is : “When the tracks of two
railroads cross each other, engineers and conductors must cause the trains of which they are in charge to come to a full stop, within a hundred feet of such crossing, and not proceed until they know the way to be clear; the train on the older railroad having the right of way being entitled to cross first.” — Code, § 1145.
The defendant’s railroad and the Georgia Pacific track ran parallel, and fifty-six feet apart at this crossing, intei’sected by the Ensley Dummy Railway; and the Kansas City, Memphis & Birmingham Railroad ran diagonally across both these tracks, three hundred and twenty-five feet from the crossing of the defendant and Ensley Railway tracks, forming with the Georgia Pacific and Kansas City, Memphis & Birmingham Railway and the Ensley Railway, an area in the shape of a triangle, with the defendant’s railroad running across the open [157]*157end of the triangle, fifty-six feet from and parallel, as above stated, to the first named railroad. This area, as the evidence tended to show, was open, with nothing to obstruct the view, except a few scattering pine trees. It is three hundred and twenty or twenty-five feet, from the crossing, south, to the Kansas Oity, Memphis & Birmingham railroad, where it crosses the defendant’s track; and, commencing a few feet south of the K. 0., M. & B. road, there runs a cut, from five to seven and oné-half feet deep. The evidence shows, that at the time the Ensley dummy approached the Georgia Pacific road, there was a freight train on the latter road, completely blocking it up, and obscuring the sight of the crossing below and the triangular area formed by said railroads, described above. At that time, the defendant’s freight train, composed of fourteen cars, including the caboose, had stopped eight hundred and sixty-five feet from the Ensley crossing, and beyond the K. 0., M. & B. road, with its rear end, at which there was a caboose car, towards the crossing when the accident happened. It used the signal bell, as the evidence tends to show, and backed towards the crossing, having attained a speed of from 4 to 12 miles an hour, as variously stated by different witnesses, at the time it reached the crossing. Just at that moment, the Ensley dummy engine had reached and was upon the crossing, and its engine and the caboose of the defendant’s train collided, killing the engineer of the Ensley dummy, the plaintiff’s intestate. The evidence tends to show, that the train of the defendant, from the time it commenced to back towards the crossing and until the collision occurred, never halted. It was argued, that the train on the Georgia Pacific road, at the time the dummy engine approached and stopped within ten or fifteen feet of it, and the deep cut above referred to, in which the defendant’s train had stopped, shut out the sight of the defendant’s train from the dummy engine, and vice versa, so that their respective engineers and servants did not see each other, thereby causing them to be unmindful, each, of the approach of the other. We have no evidence whether the engineer on the dummy saw the defendant’s approaching train or not, further than that his engine was afterwards found to be reversed, and other persons on the dummy cars, as wit[158]*158nesses, swear they saw the defendant’s approaching train, and the passengers got off in consequence. The conductor on the dummy swears he saw the approach of the other train, when it was seventy-five feet from the crossing.
I. The plaintiff’s intestate had a right to rely, upon the performance by those on the defendant’s train, in charge of it, of every act imposed by law on them, when approaching the crossing. The presumption was, that they would stop within a hundred feet of the crossing, as the statute required them to do. It can not be imputed as negligence to him, that he did • not anticipate culpable negligence on the part of the employes of defendant. One, in the position of this engineer, called upon to exercise care to avoid danger from the acts of others, might, in regulating his own conduct, have regard to the probable or apprehended conduct of such other persons, and to the presumption that they would act with reasonable caution and not with culpable negligence. And it has been held, that one approaching a railroad crossing in a cit)*' is not bound to be on the alert for danger, when he has the assurance given, in the failure of the company to give the statutory signals, that the crossing is safe. — Beiseigel v. The N. Y. C. R. R. Co., 34 N. Y. 622; Strong v. Placerville R. R. Co., 8 Am. & Eng. R. R. Cases, 274; Bower v. Chicago, M. & St. L. R. R. Co., 19 Am. & Eng. R. R. Cases, 301. Without more than that the defendant’s servants failed to bring their train to a stop, within the distance required by law, it will be presumed the injury was caused by the negligence of defendant. — Sherman on Contributory Negligence, § 469; Huckshoed v. St. Louis &c. R. R. Co., 90 Mo. 548; Beiseigel v. N. Y. C. R. R. Co., 34 N. Y. 622.
II. But, on the other hand, all the authorities, so far as we have seen, agree, and it certainly accords with sound principle, that it was the duty of the deceased, before he undertook to cross the track of the defendant, to look out for approaching trains, and the manner ancl speed with which they might come. This was his duty, notwithstanding his train had the right of way by law, and it was culpable negligence in the defendant’s employés not to accord it to him, and he might presume they would not violate their legal obligation. He had no right to close his eyes to the approaching train, if he [159]*159was in a position to see. In the absence of all apparent danger, the deceased would not be negligent in crossing defendant’s track. He was not authorized, however, to indulge a presumption that the other company would comply with the law, in the face of facts reasonably indicating that they would not. That presumption authorized him to proceed with his train up to the danger line, which no prudent person, in the exercise of that degree of caution for his own and the safety of others entrusted to him, should cross, without being chargeable with negligence. That line lay just where a person occupying his position, observing the prudence he ought to have observed, could reasonably see that the defendant’s employes were not going to make the stop. The presumption, which the law authorized him to indulge, that they would comply with the law gave way, and no longer existed, if, and when, it became reasonably apparent that they did not intend to stop. The highest degree of care, was upon him just there, without reference to the carelessness of the defendant’s agents. In such an emergency, it is not enough that the chances are equally balanced; nice calculations should not be made. The decided weight of probability should be against the chances of a collision. The contention on the part of appellant, that it was his duty to stop his train when it did not appear the other would stop, or without knowing it would do so, in the absence of the dangerous proximity of the other, sets aside the presumption that the law authorized him to indulge, that the defendant would not be guilty of the culpable negligence of violating the law. It asserts the doctrine, that it was his duty to presume the other would not do its duty, while the law is, he had the right to presume it would. — Bellefontaine Railway Co. v. Snyder, 24 Ohio St. 676; Meek v. Penn. Co., 38 Ohio St. 682; Belton v. Baxter, 54 N. Y. 245; Wendell v. N. Y. C. R. R. Co., 91 N. Y. 420; Strong v. Placerville R. R. Co., 8 Am. & Eng. R. R. Cases, 274; Pierce on Railroads, pp. 343, 345-6.
III. That there was carelessness somewhere is evidenced by the fact, that two trains, running in the day time in nearly an open country, on two tracks, at right angles to each other, should have collided. If the deceased was negligent, we are not permitted to compare [160]*160Ms with, defendant’s negligence, or to set-off the one against the other, or find against the guiltiest, but the enquiry is, — the defendant’s guilt being admitted, — was the deceased guilty of any negligence which contributed groximately to his injury?
We stated in the S. & N. A. R. R. Co. v. Schaufler, 75 Ala. 141, that the proper enquiries were : (1), Whether the damage complained of was occasioned entirely by the negligence or wrongful act of the defendant or its servants ; or, (2), whether the plaintiff, by his own negligence, or want of ordinary care and prudence, so far contributed to his own misfortune, that, but for such contributory negligence on his part, the misfortune complained of, as the basis of the action, would not have happened. — 2 Sherman & Redfield on Negligence, § 467. These are matters for the determination of the jury, under the evidence in the case.
The court, at the instance of the defendant, gave the following charges to the jury, which stated the law as favorably for defendant as could be : ' (A.) “Though the law requires engineers and others running trains to stop their trains within one hundred feet of railroad crossings, yet an engineer, who sees another train approaching said crossing under such circumstances as would indicate to a reasonable man that such approaching train was not going to stop for the crossing, should not attempt to cross in front of such moving or approaching train, although he may have complied with the law in stopping for the crossing; and if he attempts to do so and is injured thereby, he would be guilty of such negligence as would preclude a recovery by him for such injury.’ ’ (B.) “If the jury believe from the evidence that plaintiff’s .intestate could have avoided the alleged injury by the exercise of extraordinary care and diligence, then plaintiff can not recover in this action.” (C.) “I charge you, gentlemen of the jury, that the law required of the plaintiff’s intestate the exercise of extraordinary diligence in the management and control of the dummy engine.”
Applying the principles stated in this opinion to the charges requested by defendant and refused, we hold, that all of them which we do not specifically notice, were contrary to the principles we have announced above, as touching the presumption the law authorized the engineer [161]*161of the dummy line to indulge, that the persons,in control of the defendant’s train would do their duty; and thus, plainly, or in forms more or less subtle, seek to put the responsibility on him, if it did not appear, or he did not know that the other train would stop, and they are subject, for the most part, to the objection of being misleading and confusing.
Nos. 25, 26, 35 and 37 were passed on, on the other appeal, and are not insisted on now. Nos. 24 and 36 are general charges, on the effect of the evidence, and were properly refused. Charges 5, 6 and 7 were properly refused, since they ignore the presumption the law authorized the dummy engineer to indulge, that defendant’s train would obey the law, and they were, besides, calculated to confuse and mislead. The refusal to give them is justified on these grounds. Charge 8 was bad in that it makes defendant’s employes’ alleged ignorance of law an excuse for its violation.
No. 12 was properly refused. If it were admitted that the engineer was not guilty of negligence, others of the employes, on whom rested duties, might have been. Besides, we must presume he knew the road, the distance between the crossings, the length of his train, the speed it was moving, and that it was not going to stop, so far as he was concerned; and whether he was guilty of negligence or not, under these circumstances, was a question for the jury. No. 16 was calculated to mislead and confuse the jury, and the principle it asserts, if ever true, has no application to this case, and cases of this character. No. 19 was an incorrect charge, in that it ignores and altogether disregards, as a duty to be observed by the defendant train, the positive require.ment of the statute, for it to come to a stop within 100 feet of the crossing of two railroad tracks.
No. 23 was calculated to confuse and mislead the jury, and took from them the consideration of the negligence, if it existed, of the other enxployés of the company. Besides, it does not follow, that because the negligence of the conductor was the only negligence which entitled the plaintiff to recover, that she is not entitled to recover at all. Charges 20, 21, 22, 27, 29, 30, 31, 32, 33, 38, 39 and 40 each ignored the presumption the dummy engineer was authorized to indulge, as to the other train complying with the law, in giving his train, having the [162]*162older right of way, the right to cross first, and of itself coming to a full stop before attempting to cross, and in that they are each confusing and calculated to mislead, being too indefinite as to the proximity of the approaching train, its speed, and in their hypothesis of danger.
There were other assignments of error on account of the admission of evidence against defendant's objection, but they seem to be without merit, are not insisted on in argument, and are, therefore, waived.
Affirmed.