STONE, O. J.
The injury in this case was suffered in the city of Birmingham, at a point on Twenty-fourth street, where the defendant corporation and the Alabama Great Southern Bailroad cross that street, on tracks parallel with each other, and about eleven feet apart. The business house of plaintiff, Webb, was near the crossing, and he was familiar with the place, and with the fact that the two railroads crossed the street at that place. Both the testimony and the diagram attached to the transcript show that this crossing was within the area used by defendant for switching purposes, and that its switch-engine, in doing its work, frequently crossed at that crossing. Plaintiff was returning from his dinner to his place of business, about 2 o’clock, p. m., and in reaching his destination, must cross the tracks of the two railroads. When he first approached the crossing, there was a train standing on the track of the Alabama Great Southern, the track nearest to him, which extended partially across Twenty-fourth street, and blocked up the passway. He waited untill this train moved out of his way, which soon occurred. Fie then moved forward, approaching the track of the defendant corporation, and was in the act of stepping on its track with a view of crossing it, when he was struck by the tender of a switch-engine moving backwards, and received the injuries for which he sues. The defense is contributory negligence.
There was proof of an ordinance, of force in the city of Birmingham, which made it an offense punishable by fine, for any railroad company to permit a locomotive engine, running-on its track within said city, to move at a greater rate of speed than eight miles an hour when moving forwards, and four miles an hour when moving backwards. There is a conflict in the testimony as to the rate at which the locomotive was moving when the injury was done, the several -witnesses placing it all the way from six or eight miles, up to twenty-five miles an hour. The engine being moved backwards, the lowest estimate — six miles an hour — was in excess of the limit allowed by the ordinance. So, there was a conflict in the testimony as to the ringing of the bell, or other signal, required by statute to be given, while an engine is moving within a village, town or city. — Code of 1886, § 1144. It follows that these questions, [188]*188to the extent they were material, had to be solved by the jury.
Upon other questions there was no conflict, and we may state them as undisputed facts. They are chiefly taken from the testimony of the plaintiff himself, and, when not so taken, he does not controvert them. The defendant railroad company kept and maintained a watchman, at Twenty-fourth street crossing, to warn and signal persons of approaching danger; and when the injury in this case was inflicted, the watchman was at the crossing, but some ninety feet from the place of the injury. There was no obstruction between him and the plaintiff, nor between him and the approaching engine of defendant. The tender which struck the plaintiff was a high-tank tender, over which a person on the track in the direction it was being pushed, if within thirty feet of the tender, coidd not be seen by the engineer or fireman on the engine. As soon as the train on the Alabama Great Southern railroad moved off, or, at farthest, as soon as plaintiff crossed its track, the track of the defendant railroad, for a hundred yards or more each way, was opened up to his view, without any intervening obstruction. Several persons, ninetj'' to one hundred and fifty feet away from him, saw his peril, and one of them hallooed to him. ITe himself testified that, in walking from one track to thé other, he looked neither to the right nor to the left, and that he did not see the approaching engine or tender, until, when warned by the halloo, it was so near to him, that he could only partially escape the force of the collision, by throwing his body backwards. He testified further that, in walking from one track to the other, he was looking straight ahead at the flagman, who was sitting down with his flag across his lap, and looking in a different direction. There was some testimony that the flagman did signal him of his danger. In switching, the defendant corporation had frequent occasion to cross Twenty-fourth street at the crossing we have been describing. We have now summarized the facts deemed material to the questions to be discussed.
The question which was made a controlling one in the cases of Sav. & Mem. R. R. Co. v. Shearer, 58 Ala. 672, and S. & N. R. R. Co. v. Sullivan, 59 Ala. 272, does not arise in this •case. There was a watchman and flagman stationed at the •crossing, whose duty it was to maintain a look-out, and give notice of approaching danger.
The most favorable construction of the testimony fixes the charge of negligence on the defendant corporation. To back its engine within the limits of Birmingham, at a greater rate of speed than four miles an hour, was a violation of the city [189]*189ordinance on the subject, and placed the defendant in the wrong. That ordinance is a reasonable and humane police regulation, and ought to have been observed. This was negligence ; and the greater the excess of speed over the authorized limit, the more pronounced and palpable would be the negligence. So, if the watchman was not attending to his duties, and failed to warn plaintiff of his peril, when with proper attention he would have discovered it, this too was negligence, for which the defendant corporation would be liable.
But there were duties resting on the plaintiff, as well as on .the defendant. If he was guilty of negligence, which contributed proximately to the injury, then the law denies to him all right of recovery. The reason of this rule is obvious, and has been often expressed.
In S. & N. Ala. R. R. Co. v. Thompson, 62 Ala. 494, this court said: “ It is the duty of travellers, approaching the intersection of a railroad with a public highway, to look out. and listen for trains or engines; and a neglect of the duty, contributing to an injury, will avoid all right of recovery for it.” In Gothard v. Ala. Gr. So. R. R. Co., 67 Ala. 114, we quoted the following language without dissent: “As a general rule, it is culpable negligence to cross the track of a railroad at a highway crossing, without looking in every direction that the rails run, to ascertain Avhether a train is approaching. If a party rushes into danger, which, by ordinary care, he could have seen and avoided, no rule of law or justice can be invoked to. compensate him for any injury he may receive. He must take care, and so must the other party.”
In Railroad Co. v. Houston, 95 U. S. 697, the language of the court was: “The failure of the engineer to sound the whistle, or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employés in these particulars, was no excuse for negligence on her part. She was bound to listen and to look, before attempting to cross, the track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others.” And in Continental Improvement Co. v.
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STONE, O. J.
The injury in this case was suffered in the city of Birmingham, at a point on Twenty-fourth street, where the defendant corporation and the Alabama Great Southern Bailroad cross that street, on tracks parallel with each other, and about eleven feet apart. The business house of plaintiff, Webb, was near the crossing, and he was familiar with the place, and with the fact that the two railroads crossed the street at that place. Both the testimony and the diagram attached to the transcript show that this crossing was within the area used by defendant for switching purposes, and that its switch-engine, in doing its work, frequently crossed at that crossing. Plaintiff was returning from his dinner to his place of business, about 2 o’clock, p. m., and in reaching his destination, must cross the tracks of the two railroads. When he first approached the crossing, there was a train standing on the track of the Alabama Great Southern, the track nearest to him, which extended partially across Twenty-fourth street, and blocked up the passway. He waited untill this train moved out of his way, which soon occurred. Fie then moved forward, approaching the track of the defendant corporation, and was in the act of stepping on its track with a view of crossing it, when he was struck by the tender of a switch-engine moving backwards, and received the injuries for which he sues. The defense is contributory negligence.
There was proof of an ordinance, of force in the city of Birmingham, which made it an offense punishable by fine, for any railroad company to permit a locomotive engine, running-on its track within said city, to move at a greater rate of speed than eight miles an hour when moving forwards, and four miles an hour when moving backwards. There is a conflict in the testimony as to the rate at which the locomotive was moving when the injury was done, the several -witnesses placing it all the way from six or eight miles, up to twenty-five miles an hour. The engine being moved backwards, the lowest estimate — six miles an hour — was in excess of the limit allowed by the ordinance. So, there was a conflict in the testimony as to the ringing of the bell, or other signal, required by statute to be given, while an engine is moving within a village, town or city. — Code of 1886, § 1144. It follows that these questions, [188]*188to the extent they were material, had to be solved by the jury.
Upon other questions there was no conflict, and we may state them as undisputed facts. They are chiefly taken from the testimony of the plaintiff himself, and, when not so taken, he does not controvert them. The defendant railroad company kept and maintained a watchman, at Twenty-fourth street crossing, to warn and signal persons of approaching danger; and when the injury in this case was inflicted, the watchman was at the crossing, but some ninety feet from the place of the injury. There was no obstruction between him and the plaintiff, nor between him and the approaching engine of defendant. The tender which struck the plaintiff was a high-tank tender, over which a person on the track in the direction it was being pushed, if within thirty feet of the tender, coidd not be seen by the engineer or fireman on the engine. As soon as the train on the Alabama Great Southern railroad moved off, or, at farthest, as soon as plaintiff crossed its track, the track of the defendant railroad, for a hundred yards or more each way, was opened up to his view, without any intervening obstruction. Several persons, ninetj'' to one hundred and fifty feet away from him, saw his peril, and one of them hallooed to him. ITe himself testified that, in walking from one track to thé other, he looked neither to the right nor to the left, and that he did not see the approaching engine or tender, until, when warned by the halloo, it was so near to him, that he could only partially escape the force of the collision, by throwing his body backwards. He testified further that, in walking from one track to the other, he was looking straight ahead at the flagman, who was sitting down with his flag across his lap, and looking in a different direction. There was some testimony that the flagman did signal him of his danger. In switching, the defendant corporation had frequent occasion to cross Twenty-fourth street at the crossing we have been describing. We have now summarized the facts deemed material to the questions to be discussed.
The question which was made a controlling one in the cases of Sav. & Mem. R. R. Co. v. Shearer, 58 Ala. 672, and S. & N. R. R. Co. v. Sullivan, 59 Ala. 272, does not arise in this •case. There was a watchman and flagman stationed at the •crossing, whose duty it was to maintain a look-out, and give notice of approaching danger.
The most favorable construction of the testimony fixes the charge of negligence on the defendant corporation. To back its engine within the limits of Birmingham, at a greater rate of speed than four miles an hour, was a violation of the city [189]*189ordinance on the subject, and placed the defendant in the wrong. That ordinance is a reasonable and humane police regulation, and ought to have been observed. This was negligence ; and the greater the excess of speed over the authorized limit, the more pronounced and palpable would be the negligence. So, if the watchman was not attending to his duties, and failed to warn plaintiff of his peril, when with proper attention he would have discovered it, this too was negligence, for which the defendant corporation would be liable.
But there were duties resting on the plaintiff, as well as on .the defendant. If he was guilty of negligence, which contributed proximately to the injury, then the law denies to him all right of recovery. The reason of this rule is obvious, and has been often expressed.
In S. & N. Ala. R. R. Co. v. Thompson, 62 Ala. 494, this court said: “ It is the duty of travellers, approaching the intersection of a railroad with a public highway, to look out. and listen for trains or engines; and a neglect of the duty, contributing to an injury, will avoid all right of recovery for it.” In Gothard v. Ala. Gr. So. R. R. Co., 67 Ala. 114, we quoted the following language without dissent: “As a general rule, it is culpable negligence to cross the track of a railroad at a highway crossing, without looking in every direction that the rails run, to ascertain Avhether a train is approaching. If a party rushes into danger, which, by ordinary care, he could have seen and avoided, no rule of law or justice can be invoked to. compensate him for any injury he may receive. He must take care, and so must the other party.”
In Railroad Co. v. Houston, 95 U. S. 697, the language of the court was: “The failure of the engineer to sound the whistle, or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employés in these particulars, was no excuse for negligence on her part. She was bound to listen and to look, before attempting to cross, the track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others.” And in Continental Improvement Co. v. Stead, same volume, 161, that court said: “Those who are crossing a railroad track, are bound to exercise ordinary care and diligence to ascertain [190]*190whether a train is approaching. They have, indeed, the greatest incentive to caution, for their lives are in imminent danger if collision happen; and hence it will not be presumed, without evidence, that they do not exercise proper care in a given case. But, notwithstanding the hazard, the infirmity of the human mind in ordinary men is such that they often do manifest a degree of negligence and temerity entirely inconsistent with the care and prudence which is required of them — such, namely, as an ordinarily prudent man would exercise under the circumstances. When such is the case, they can not obtain reparation for their injuries, even though the railroad company be in fault. They are the authors of their own misfortune.”
In Durbin v. Oregon & Nav. Co., 32 Amer. & Eng. R. R. Cas. 149, “plaintiff had passed the crossing many times before, and was familiar with it. She had always used great care in looking for trains, but on this occasion she did not stop to look or listen. Her team came into collision with a passing engine, and she sustained considerable damage. 'Held, that the plaintiff was guilty of contributory negligence, and could not recover.” Mr. Beach, Contributory Negligence, § 9, says, “It is tolerably well settled that, under such circumstances [crossing a railroad track on grade], a traveller must look up and down the track attentively, and a failure to do this is generally negligence as a matter of law.”
We might add citations indefinitely, but consider the foregoing as sufficient. We regard the question as settled in Alabama, by our rulings cited above; and that a failure to employ the senses on ai^proaching a railroad crossing, when such employment would insure safety, is, as matter of law, contributory negligence, and a complete defense to a suit for injuries sustained by the negligent handling of the railroad’s train, unless such negligence was so reckless or wanton as to be, in law, the equivalent of willful or intentional wrong.—Tanner v. L. & N. R. R. Co., 60 Ala. 621; M. & C. R. R. Co. v. Copeland, 61 Ala. 376; Cook v. Cen. R. R. & B. Co., 67 Ala. 533; Cen. R. R. & B. Co. v. Letcher, 69 Ala. 106; 3 Brick. Dig. 672, §§ 25 et seq.
In Louisville & Nashville R. R. Co. v. Crawford, 89 Ala. 240, we defined the measure of wanton or reckless negligence which will overcome the defense of contributory negligence. We need not repeat it here. It is our intention to adhere to that doctrine.—Leah v. Ga. Pac. R. R. Co., ante, p. 161.
The defendant asked separately thirty-six written charges, and they were severally refused; and a separate exception was reserved to each refusal. What we have said above will [191]*191show that, in many of these refusals, the Circuit Court erred. We need only mention the first five, each of which should have been given. It must not be understood, however, that in failing to comment on the other charges, we discover nothing in them to comment on. Our precise meaning is, that what we have said will furnish a sufficient guide on another trial.
Proving the distance a man can walk in an hour, was not the proper means of ascertaining the rate at which the engine was moving when the plaintiff was injured. This, however, could not have injured the defendant. It was only another method of testifying that the engine" was moving at a greater rate than four miles an hour. There is nothing in the other objections to testimony.