ANDERSON, J.
The complaint contains three counts; the first two charging simple negligence, and the third count charging that the killing was willful, wanton, and intentional. The case was tried on the general issue as to all of the counts and a special plea of contributory negligence to the first two counts, which said plea charges, in substance, that plaintiff’s intestate failed to stop and look and listen before crossing the track, and which said failure was the “proximate cause” of his death. The plaintiff’s evidence supported the first two counts of the complaint, and as charge 1, requested by defendant, was the general affirmative charge as to the whole complaint, it was properly refused by the trial court.
It is insisted by appellant’s counsel that his special plea of contributory negligence was a good defense to the first two counts, and that, if it was proven, the defendant was entitled to the affirmative charge as to said two counts, and that, if plaintiff’s intestate had a lawful excuse for failing to stop and look and listen, it was not available to the plaintiff without a replication and that he deprived himself of this right by joining-issue on the defendant’s special plea. We are not unmindful of the rule that when issue is joined on a plea, whether it presents a good defense or not, and said plea is proven beyond dispute, the defendant is entitled to [363]*363the affirmative charge; but we canuot consent to the defendant’s contention that the special plea in the case at bar was proven beyond dispute. The authorities are numerous to the effect that a party should stop and look and listen before attempting to cross a railroad track.— L. & N. R. R. Co. v. Richards, 100 Ala. 365, 13 South. 944; L. & N. R. R. Co. v. Webb, 90 Ala. 185, 8 South. 518, 11 L. R. A. 674. And it must be borne in mind, however, that while such a failure on the part of the complaining party ordinarily amounts to negligence, in order for it to defeat his right to recover, it must have contributed proximately to his injury. — Thompson v. Duncan, 76 Ala. 334. Indeed, the plea avers that the failure to stop and look and listen was the proximate cause of the intestate’s death, and it would not have been a good plea without said averment. The law does not require the doing of a useless thing. If, therefore, the train could not have been seen or heard, had the intestate stopped and looked and listened before attempting to cross the track, then a failure on his part to do so cannot be affirmed as the proximate cause of his death.
The evidence shows that the intestate was run over and killed by a detached engine, running several hundred yards ahead of a freight train drawn by another engine. There was evidence that the engine that struck plaintiff’s intestate had no headlight, and that at the time of the collision it was almost, if not quite, dark. Mason, one of the plaintiff’s witnesses, testified that “the engine had no headlight,” while Chamblee, another witness, who was in the buggy with Mason, was not certain as to a headlight on it, but testified that it might have been a “lantern.” Yet Chamblee also testified that they crossed the track immediately ahead of the intestate, and “saw the light on the engine pulling the freight [364]*364train, and heard said train,” but were not aware of the approach of the detached engine until after it “passed by.” He also testified that he did not hear the detached engine, but did hear the train behind it. One of the defendant’s witnesses, Laney, who was near the crossing when Kite was killed, said: “The engine was dark, and it was getting dark.” The trial court properly left it to the jury to determine whether or not the intestate’s failure to stop and look and listen contributed proximately to his death, and did not err in refusing charges 2, 3, and 4, requested by defendant.
Moreover, for another reason it cannot be said that the plea was proven beyond dispute. It avers that it was the intestate’s “duty” to stop and look and listen before crossing the track. Ordinarily it is the duty of a person to stop and look and listen before attempting to cross a railway; but that duty does not exist if he is not in a position to do so, or if the conditions were such that he could not see or hear an approaching train, had he done so. The law does not require the impossible, nor the doing of a useless thing. — L. & N. R. R. v. Crawford, 89 Ala. 240-245; 8 South. 243; Beach on Contributory Neg. pp. 265, 266, note 16; Elliott on R. R. vol. 3, § 1167, and note.
So much of the oral charge as was excepted to by the defendant was a correct statement of law. If the plaintiff’s intestate’s inability to stop and look and listen was not available because of the condition of the pleading, the defendant could have asked an explanatory charge, or one qualifying the rule in the case a.t bar. The charge merely stated the law, and gave no instruction as to its application. Trial courts will not be reversed for refusing abstract charges, or charges not covered by the pleading. Although they assert the law correctly, yet they will not be reversed for giving such charges, unless it appears that injury was sustained.
[365]*365Tlie trial court did not err in refusing charge 5, requested by the defendant. It pretermits the failure to stop as being the proximate cause of intestate’s death, and assumes that it was his duty to do so, when under the facts of the case it Avas for the jury to determine Avhether or not it Avas his duty to stop and look and listen.
Charge 6, refused to the defendant, Avas sufficiently duplicated by given charges 12 and 13.
Charge 7, requested by the defendant, Avas properly refused. It asks a finding for the defendant as to counts 1 and 2 for a mere failure of the intestate to stop and look and listen, and pretermits any inquiry as to the proximate cause of intestate’s death. The failure of plaintiff’s intestate to stop and look and listen would not bar a recorery, unless said failure proximately contributed to intestate’s death.
Charges 8, 22, and 23, requested by defendant, were properly refused. In the first place, they seek to defeat a recovery on negligence not covered by defendant’s plea; second, they seek to set up negligence of the intestate against the third count, and this doctrine lias been repudiated by this court. — L. & N. R. R. Co. v. Orr. 121 Ala. 489, 26 South. 35; Markee's Case, 103 Ala. 160, 170, 15 South. 511, 49 Am. St. Rep. 21.
Charges 9 and 10, requested by the defendant, Avere property refused. They assume as matter of law that it Avas the imperative duty of the intestate to stop and look and listen, and that his failure to do so Avas negligence, Avhen it Avas, Ave think, a question for the jury to determine Avhether or not it was his duty.
Charge 12, requested by the defendant, Avas properly refused. It requests a finding for the defendant as to counts 1 and 2 for a failure to stop and look and listen,- [366]*366and pretermits any inquiry as to the proximate cause of intestate’s death.
Charges 13 and 14, requested by defendant, were properly refused. The negligence of the defendant may not have been the sole cause of Kite’s death, yet may have been the proximate cause.
Charge 15, requested by defendant, was properly refused. It is practically the affirmative charge as to 'counts 1 and 2 and has been fully discussed.
Charge 11 was properly refused.
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ANDERSON, J.
The complaint contains three counts; the first two charging simple negligence, and the third count charging that the killing was willful, wanton, and intentional. The case was tried on the general issue as to all of the counts and a special plea of contributory negligence to the first two counts, which said plea charges, in substance, that plaintiff’s intestate failed to stop and look and listen before crossing the track, and which said failure was the “proximate cause” of his death. The plaintiff’s evidence supported the first two counts of the complaint, and as charge 1, requested by defendant, was the general affirmative charge as to the whole complaint, it was properly refused by the trial court.
It is insisted by appellant’s counsel that his special plea of contributory negligence was a good defense to the first two counts, and that, if it was proven, the defendant was entitled to the affirmative charge as to said two counts, and that, if plaintiff’s intestate had a lawful excuse for failing to stop and look and listen, it was not available to the plaintiff without a replication and that he deprived himself of this right by joining-issue on the defendant’s special plea. We are not unmindful of the rule that when issue is joined on a plea, whether it presents a good defense or not, and said plea is proven beyond dispute, the defendant is entitled to [363]*363the affirmative charge; but we canuot consent to the defendant’s contention that the special plea in the case at bar was proven beyond dispute. The authorities are numerous to the effect that a party should stop and look and listen before attempting to cross a railroad track.— L. & N. R. R. Co. v. Richards, 100 Ala. 365, 13 South. 944; L. & N. R. R. Co. v. Webb, 90 Ala. 185, 8 South. 518, 11 L. R. A. 674. And it must be borne in mind, however, that while such a failure on the part of the complaining party ordinarily amounts to negligence, in order for it to defeat his right to recover, it must have contributed proximately to his injury. — Thompson v. Duncan, 76 Ala. 334. Indeed, the plea avers that the failure to stop and look and listen was the proximate cause of the intestate’s death, and it would not have been a good plea without said averment. The law does not require the doing of a useless thing. If, therefore, the train could not have been seen or heard, had the intestate stopped and looked and listened before attempting to cross the track, then a failure on his part to do so cannot be affirmed as the proximate cause of his death.
The evidence shows that the intestate was run over and killed by a detached engine, running several hundred yards ahead of a freight train drawn by another engine. There was evidence that the engine that struck plaintiff’s intestate had no headlight, and that at the time of the collision it was almost, if not quite, dark. Mason, one of the plaintiff’s witnesses, testified that “the engine had no headlight,” while Chamblee, another witness, who was in the buggy with Mason, was not certain as to a headlight on it, but testified that it might have been a “lantern.” Yet Chamblee also testified that they crossed the track immediately ahead of the intestate, and “saw the light on the engine pulling the freight [364]*364train, and heard said train,” but were not aware of the approach of the detached engine until after it “passed by.” He also testified that he did not hear the detached engine, but did hear the train behind it. One of the defendant’s witnesses, Laney, who was near the crossing when Kite was killed, said: “The engine was dark, and it was getting dark.” The trial court properly left it to the jury to determine whether or not the intestate’s failure to stop and look and listen contributed proximately to his death, and did not err in refusing charges 2, 3, and 4, requested by defendant.
Moreover, for another reason it cannot be said that the plea was proven beyond dispute. It avers that it was the intestate’s “duty” to stop and look and listen before crossing the track. Ordinarily it is the duty of a person to stop and look and listen before attempting to cross a railway; but that duty does not exist if he is not in a position to do so, or if the conditions were such that he could not see or hear an approaching train, had he done so. The law does not require the impossible, nor the doing of a useless thing. — L. & N. R. R. v. Crawford, 89 Ala. 240-245; 8 South. 243; Beach on Contributory Neg. pp. 265, 266, note 16; Elliott on R. R. vol. 3, § 1167, and note.
So much of the oral charge as was excepted to by the defendant was a correct statement of law. If the plaintiff’s intestate’s inability to stop and look and listen was not available because of the condition of the pleading, the defendant could have asked an explanatory charge, or one qualifying the rule in the case a.t bar. The charge merely stated the law, and gave no instruction as to its application. Trial courts will not be reversed for refusing abstract charges, or charges not covered by the pleading. Although they assert the law correctly, yet they will not be reversed for giving such charges, unless it appears that injury was sustained.
[365]*365Tlie trial court did not err in refusing charge 5, requested by the defendant. It pretermits the failure to stop as being the proximate cause of intestate’s death, and assumes that it was his duty to do so, when under the facts of the case it Avas for the jury to determine Avhether or not it Avas his duty to stop and look and listen.
Charge 6, refused to the defendant, Avas sufficiently duplicated by given charges 12 and 13.
Charge 7, requested by the defendant, Avas properly refused. It asks a finding for the defendant as to counts 1 and 2 for a mere failure of the intestate to stop and look and listen, and pretermits any inquiry as to the proximate cause of intestate’s death. The failure of plaintiff’s intestate to stop and look and listen would not bar a recorery, unless said failure proximately contributed to intestate’s death.
Charges 8, 22, and 23, requested by defendant, were properly refused. In the first place, they seek to defeat a recovery on negligence not covered by defendant’s plea; second, they seek to set up negligence of the intestate against the third count, and this doctrine lias been repudiated by this court. — L. & N. R. R. Co. v. Orr. 121 Ala. 489, 26 South. 35; Markee's Case, 103 Ala. 160, 170, 15 South. 511, 49 Am. St. Rep. 21.
Charges 9 and 10, requested by the defendant, Avere property refused. They assume as matter of law that it Avas the imperative duty of the intestate to stop and look and listen, and that his failure to do so Avas negligence, Avhen it Avas, Ave think, a question for the jury to determine Avhether or not it was his duty.
Charge 12, requested by the defendant, Avas properly refused. It requests a finding for the defendant as to counts 1 and 2 for a failure to stop and look and listen,- [366]*366and pretermits any inquiry as to the proximate cause of intestate’s death.
Charges 13 and 14, requested by defendant, were properly refused. The negligence of the defendant may not have been the sole cause of Kite’s death, yet may have been the proximate cause.
Charge 15, requested by defendant, was properly refused. It is practically the affirmative charge as to 'counts 1 and 2 and has been fully discussed.
Charge 11 was properly refused. It charges the jury as matter of law that the intestate was guilty of contributory negligence. It is true that he did not stop and look and listen; but it was for the jury to determine, under the facts of the case, whether or not said failure was contributory negligence. For the same reason charge 16, requested by defendant, was properly refused.
Charge 17, requested by defendant, was properly refused. It pretermits any inquiry as to whether or not the intestate’s failure to stop and look and listen proximately contributed to his death.
Charge 18, requested by defendant, if good, was covered by given charge 10.
Charge 20, requested by defendant, was properly refused. If not otherwise bad, it sought to defeat plaintiff’s recovery under the first two counts by setting up negligence not covered by the defendant’s special plea. —Central of Ga. Ry. v. Foshee, 125 Ala. 199, 27 South. 1006.
Charge 21 possessed the same vice as charge 20, so far as it related to the first two counts of the complaint, and was further bad in setting up the negligence of the plaintiff’s intestate against a recovery under the wanton count of the complaint.
There was no error in permitting the plaintiff to ask [367]*367the witness Crawford, as to his opportunity for seeing a man approaching the crossing. The witness had testified as to the conditions and surroundings, and that the engine could have been seen from the road; and it was proper to permit the plaintiff on the cross-examination to show that the opportunity for observation was as good for the engineer as the intestate. Witnesses can testify whether or not a person could have seen a thing.
The judgment of the circuit court is affirmed.
Tyson, O. J., and Haralson, Simpson, Denson, and McClellan, JJ., concur. Dowdell, J., dissents.