COLEMAN, J.
The plaintiff sued under section 2589 of the Code of 1886 to recover damages for personal injuries inflicted upon his intestate which caused her death.
The first, third and fourth counts charge simple negligence and sufficiently aver a cause of action. • The second count avers that defendant .“in the management, conduct and running of one of its freight trains, through the incorporated town or village, of Madison, with reckless, unwarranted and dangerous' rate of speed, did wantonly and recklessly strike and run over plaintiff’s intestate at a public road crossing in said town,” etc. Under the uniform rulings of this court, this count sufficiently avers that the injury to intestate was wantonly inflicted.—South & North Ala. R. R. Co. v. Thompson, 62 Ala. 494; Chewning v. Ensley Railway Co., 103 Ala. 24 ; Jones v. Darden, 90 Ala. 372; Oxford Lake Line [382]*382v. Stedham, 101 Ala. 376. The fifth count of 'the complainant is confused and inconsistent. While the first' clause of the count charges that the injury was wantonly inflicted, the latter clause, sets out the facts constituting the wanton conduct. The whole count 'must be construed together, and when thus construed, it is evident that the facts relied upon to show wantonness, amount to no more than simple negligence. The demurrer to the 5th count pointed out its defects, and ought to have been sustained. Again, if this count had not been demurred to, applying the rule, that the pleading must b.e construed most strongly against the pleader until judgment, we would be -compelled to hold that .the fifth count averred only simple negligence ; and consequently the plea -of contributory negligence to the fifth count, presented a- good defense, and the demurrer to this plea ought to have been overruled. The mere intentional omission to perform a duty or the intentional doing of an act contrary to duty, although such conduct be culpable and result in injury, .without further averment, falls very far short of showing that the injury was intention-' ally or wantonly inflieted. Unless thei’e was a pux-pose to ixxflict the injury, it caxx not be said to have beexx intexx’tioixálly’.done; and unless an act is done, or omitted to be doxxe, under circumstances and conditions known to the pex'son, that his conduct is likely to, jor px’obably will result in injury, axxd thi’oxxgh reckless indifference to conseqxxexxces, he consciously and ixxtentionally does a wroxxgful act, or omits an act, the injxxxy can xxotbe said to be waxxtonly inflicted. These px’ixxciples have been frequexxtly declared by this court.—L. & N. R. R. Co. v. Anchors, 114 Ala. 492; Birmingham Railway & Electric Co. v. Bowers, 110 Ala. 328 ; Ga. Pac. Railway Co. v. Lee, 92 Ala. 262; Stringer v. Ala. Min. Railroad Co., 99 Ala. 397.
We find xxo error prejudicial to the appellant ixx the admissioxx of the evidence as to the location of the different houses near the crossing, -nor of the side track "and the-cars that were staxxdixxg on it near the crossixxg. We presume this evidexxce was adxnitted for the pux-pose of showixxg that these obstructions increased the obligatioix of'the defendant, to approach the crossixxg with moré' care, axxd also for the purpose of showing that the view of deceased was interrupted by these obstructions'. [383]*383-If these- facts imposed additional care, upon the- defendant, they in like manner required of deceased before venturing to cross that she should have been the more .careful to ascertain whether with safety she could cross .the track.—H. A. & B. R. R. Co. v. Sampson, 91 Ala. 560.
The defendant relied upon a declaration of the deceased made after she sustained the injury.-that, “she -.c-oukl not see how she-had been so careless,” ‘ Wé, fire of opinion it was competent to show -that deceased did. not recover consciousness after being struck by the train.
To sustain the second - count of the complaint, that Which charged the defendant with having wantonly rah the engine against the deceased, the plaintiff proved that the place where deceased, was struck, was a public crossing in the town of Madison having a population of about five hundred people, that this crossing was used, more than.- any other in the town, and that the average crossing during the day was about one person in every ten minutes, and according to. some of the testimony, people crossed in ‘-‘great numbers.” A witness could be required on cross-esamination to define what was intended by the -term “frequently” and in “great numbers.” The speed of the train at the time, according to the different witnesses, ranged from eight miles to thirty miles per hour. Assuming that the train was running at the speed of thirty miles an hour, over a public crossing of the track in a town of five hundred inhabitants, .and that there was an average crossing by the people of one person every ten minutes, or in great numbers, facts known to the servants in charge of the train, does .the. law declare that these facts do not constitute wanton negligence, or is the question as to whether these facts constitute wanton negligence one of law and fact, properly referable to a jury for its determination? The .decisions of this State-bearing upon the question, were collected and reviewed in the case of L. & N. R. R. Co. v. Webb, 97 Ala. 308, and in conclusion we used the following language : “As we have said in Arnold’s Case, supra, ‘precautionary requirements increase in the ratio that danger becomes more threatening and in Sampson’s Case and Meador’s Case, supra, ‘the duty of care and vigilance becomes proportionately increased according to the less or greater likelihood that there are [384]*384persons on the track at the time and placeand in Lee's Case, supra, ‘reckless indifference will be imputed to those who run a train at a high rate of speed without signals of approach when trainmen ' have reason to believe there are persons in exposed positions as over unguarded crossings in a populous district of a city, or where the public are wont to pass with such frequency and in such numbers, facts known to those in charge of the train,” etc.
- “The public is entitled to the right of way over public crossings, as much so, as the railroad itself. Persons in the proper exercise of this right are in no. sense trespassers, and while it is incumbent on them to exercise due care, by looking and listening for approaching trains, it is equally the duty of those operating trains over such places to exercise due care to prevent injury. If in utter disregard of this duty, and of the many restrictions imposed by the statute and city ordinances enacted to protect life and property at such places, those in charge should rush an engine voluntarily and unnecessarily over a public crossing, when it is likely, at the time persons are exercising their right to cross the track as a public highway, a condition or fact, on account of its location in a populous city, and the extent of its use as such, would authorize a jury to infer was known to defendant, with such reckless speed that due care in keeping a' proper lookout for persons who might be upon the track could not be had by those 'operating the train, or if such persons should be discovered upon the track, could not possibly stop or slacken, its speed in time to avoid inflicting injury, and injury did result from such negligence, can it be said as a conclusion of law, upon any safe rule, that such reckless conduct and disregard of consequences, is not the equivalent of willfulness or wantonness ?
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COLEMAN, J.
The plaintiff sued under section 2589 of the Code of 1886 to recover damages for personal injuries inflicted upon his intestate which caused her death.
The first, third and fourth counts charge simple negligence and sufficiently aver a cause of action. • The second count avers that defendant .“in the management, conduct and running of one of its freight trains, through the incorporated town or village, of Madison, with reckless, unwarranted and dangerous' rate of speed, did wantonly and recklessly strike and run over plaintiff’s intestate at a public road crossing in said town,” etc. Under the uniform rulings of this court, this count sufficiently avers that the injury to intestate was wantonly inflicted.—South & North Ala. R. R. Co. v. Thompson, 62 Ala. 494; Chewning v. Ensley Railway Co., 103 Ala. 24 ; Jones v. Darden, 90 Ala. 372; Oxford Lake Line [382]*382v. Stedham, 101 Ala. 376. The fifth count of 'the complainant is confused and inconsistent. While the first' clause of the count charges that the injury was wantonly inflicted, the latter clause, sets out the facts constituting the wanton conduct. The whole count 'must be construed together, and when thus construed, it is evident that the facts relied upon to show wantonness, amount to no more than simple negligence. The demurrer to the 5th count pointed out its defects, and ought to have been sustained. Again, if this count had not been demurred to, applying the rule, that the pleading must b.e construed most strongly against the pleader until judgment, we would be -compelled to hold that .the fifth count averred only simple negligence ; and consequently the plea -of contributory negligence to the fifth count, presented a- good defense, and the demurrer to this plea ought to have been overruled. The mere intentional omission to perform a duty or the intentional doing of an act contrary to duty, although such conduct be culpable and result in injury, .without further averment, falls very far short of showing that the injury was intention-' ally or wantonly inflieted. Unless thei’e was a pux-pose to ixxflict the injury, it caxx not be said to have beexx intexx’tioixálly’.done; and unless an act is done, or omitted to be doxxe, under circumstances and conditions known to the pex'son, that his conduct is likely to, jor px’obably will result in injury, axxd thi’oxxgh reckless indifference to conseqxxexxces, he consciously and ixxtentionally does a wroxxgful act, or omits an act, the injxxxy can xxotbe said to be waxxtonly inflicted. These px’ixxciples have been frequexxtly declared by this court.—L. & N. R. R. Co. v. Anchors, 114 Ala. 492; Birmingham Railway & Electric Co. v. Bowers, 110 Ala. 328 ; Ga. Pac. Railway Co. v. Lee, 92 Ala. 262; Stringer v. Ala. Min. Railroad Co., 99 Ala. 397.
We find xxo error prejudicial to the appellant ixx the admissioxx of the evidence as to the location of the different houses near the crossing, -nor of the side track "and the-cars that were staxxdixxg on it near the crossixxg. We presume this evidexxce was adxnitted for the pux-pose of showixxg that these obstructions increased the obligatioix of'the defendant, to approach the crossixxg with moré' care, axxd also for the purpose of showing that the view of deceased was interrupted by these obstructions'. [383]*383-If these- facts imposed additional care, upon the- defendant, they in like manner required of deceased before venturing to cross that she should have been the more .careful to ascertain whether with safety she could cross .the track.—H. A. & B. R. R. Co. v. Sampson, 91 Ala. 560.
The defendant relied upon a declaration of the deceased made after she sustained the injury.-that, “she -.c-oukl not see how she-had been so careless,” ‘ Wé, fire of opinion it was competent to show -that deceased did. not recover consciousness after being struck by the train.
To sustain the second - count of the complaint, that Which charged the defendant with having wantonly rah the engine against the deceased, the plaintiff proved that the place where deceased, was struck, was a public crossing in the town of Madison having a population of about five hundred people, that this crossing was used, more than.- any other in the town, and that the average crossing during the day was about one person in every ten minutes, and according to. some of the testimony, people crossed in ‘-‘great numbers.” A witness could be required on cross-esamination to define what was intended by the -term “frequently” and in “great numbers.” The speed of the train at the time, according to the different witnesses, ranged from eight miles to thirty miles per hour. Assuming that the train was running at the speed of thirty miles an hour, over a public crossing of the track in a town of five hundred inhabitants, .and that there was an average crossing by the people of one person every ten minutes, or in great numbers, facts known to the servants in charge of the train, does .the. law declare that these facts do not constitute wanton negligence, or is the question as to whether these facts constitute wanton negligence one of law and fact, properly referable to a jury for its determination? The .decisions of this State-bearing upon the question, were collected and reviewed in the case of L. & N. R. R. Co. v. Webb, 97 Ala. 308, and in conclusion we used the following language : “As we have said in Arnold’s Case, supra, ‘precautionary requirements increase in the ratio that danger becomes more threatening and in Sampson’s Case and Meador’s Case, supra, ‘the duty of care and vigilance becomes proportionately increased according to the less or greater likelihood that there are [384]*384persons on the track at the time and placeand in Lee's Case, supra, ‘reckless indifference will be imputed to those who run a train at a high rate of speed without signals of approach when trainmen ' have reason to believe there are persons in exposed positions as over unguarded crossings in a populous district of a city, or where the public are wont to pass with such frequency and in such numbers, facts known to those in charge of the train,” etc.
- “The public is entitled to the right of way over public crossings, as much so, as the railroad itself. Persons in the proper exercise of this right are in no. sense trespassers, and while it is incumbent on them to exercise due care, by looking and listening for approaching trains, it is equally the duty of those operating trains over such places to exercise due care to prevent injury. If in utter disregard of this duty, and of the many restrictions imposed by the statute and city ordinances enacted to protect life and property at such places, those in charge should rush an engine voluntarily and unnecessarily over a public crossing, when it is likely, at the time persons are exercising their right to cross the track as a public highway, a condition or fact, on account of its location in a populous city, and the extent of its use as such, would authorize a jury to infer was known to defendant, with such reckless speed that due care in keeping a' proper lookout for persons who might be upon the track could not be had by those 'operating the train, or if such persons should be discovered upon the track, could not possibly stop or slacken, its speed in time to avoid inflicting injury, and injury did result from such negligence, can it be said as a conclusion of law, upon any safe rule, that such reckless conduct and disregard of consequences, is not the equivalent of willfulness or wantonness ? — Shumacher v. St. L. & S. F. R. Co., (Ark.) 39 Fed. Rep. 174.
“We are of opinion that a train may be run under some circumstances over a public crossing in a populous city at such speed as to amount to that recklessness which is the equivalent of wantonness and willfulness.
‘ ‘The court can not, as a matter of law, from the very character of the question, pronounce precisely and infallibly the precise rate of.speed at which a train may be run over such a--crossing under the circumstances [385]*385here testified to without being guilty of culpable negligence.”
In the Webb Case, supra, we held, that under the circumstances “it was proper and necessary to submit the question of the degree of negligence to the determination of the jury,” and though the evidence in the present case is not altogether the same, the facts are such as to bring the case within the influence of the principles therein declared and the authorities cited. Whether or not, therefore, the defendant was guilty of wanton injury under the facts of the case, should have been referred to the jury for its determination.
It is earnestly contended by appellant that such a rule, will greatly impede commercial transactions, and directly impair the efficiency of transportation by railroads. The public and railroads have their respective rights and are under mutual obligations at public crossings and in the use of them. The doctrine of sic utere tuo ut alienum non laedas, applies alike to persons and corporations. The value of human life can not be overbalanced by any. pecuniary or public interest. Our duty is simply to declare the law. -
Tested by the foregoing principles of law which we have declared to be correct, it will be seen the court erred in the instruction given to the jury ex mero motu, and some of those given at the request of the plaintiff.
This court has never held, that the mere crossing of the track of a railroad at. a public crossing, by people frequently and in numbers, was sufficient to impute knowledge to those in charge of the engine and train, “that likely or probably” some person at the time was on the track. “Frequently and in numbers” are terms too indefinite to justify the legal conclusion deduced therefrom by the court. The rule is, that if the jury should find from the evidence, that people crossed so frequently and in such numbers, (facts known.to those in charge of the train) that it was likely or probable, that at the time, some person would be on the track, then the jury would be authorized to find that the conduct of the defendant’s servants was wanton and with reckless indifference to consequences. The oral charge of the court and charge No. 5 given at plaintiff’s request, failed to draw .the distinction here pointed out, and these charges ignored other material evidence, which [386]*386will be referred to when we consider the charges requested by the defendant.
Charge 7 given for plaintiff asserts a correct proposition of law. We refer to this charge specially, because this conclusion disposes of charge 6 requested by the defendant, and others which asserted that there could be no wanton negligence, in the absence of an ordinance or statute regulating the speed of trains.
• We are of opinion that charge 17 requested by the defendant, asserted a correct proposition of law, and should have been given. . We find no conflict in the evidence, that after the deceased crossed the side track and before reaching the main track upon which the train was approaching, there was nothing to obstruct the view for some distance. There was evidence also tending to show that deceased, just before stepping on the main track, halted and looked towards the train, and that the train at that time was in sight or within hearing and approaching, and that she starred to run across the track. These facts were sufficiently predicated in the charge. In the case of Highland Ave. & Belt R. R. Co. v. Sampson, 91 Ala. 564, we used the following language : “A person wishing to cross the track of a railroad at a public crossing, or any place where trains are not required to stop,_ and seeing a train approaching, and who for himself measures the distance and time it will take to cross, and acting upon his own judgment, undertakes to cross, assumes the risk, and if injured, cannot hold the railroad responsible, unless his intention was apparent to the employes of defendant operating the train, and after such perilous intention and conduct became apparent, by the exercise of due care and reasonable diligence, the injury could have been avoided.” The same principle was asserted in the case of Ga. Pac. R’y Co. v. Lee, 92 Ala. 272, and in Glass v. M. & C. R. R. Co., 94 Ala. 590. To the same effect are the following cases: Railroad v. Houston, 95 U. S. 697; Schofield v. Railroad, 114 U. S. 614; Gothard v. Ala. Gr. So. R. R. Co., 67 Ala. 114. A majority of the court, however, are of opinion that the facts predicated do not answer the second count of the complaint.
In the opinion of the writer it was not intended by anything said in the Marhee Case, 103 Ala. 160, to relieve a person from the consequences of such a danger,-. [387]*387ous act, voluntarily and knowingly assumed, as the attempt to cross a railroad track, in dangerous proximity to and in front of a rapidly approaching train, there being no purpose or intent to inflict injury. If susceptible of other construction, it ought to be considered so modified as to conform to the i-ule herein declared.
Charge 3 requested by the defendant should have been given. This charge in effect is the same as that approved in the case of Gothard v. Ala. Gr. So. R. R. Co., supra.
Charges numbered 9 and 10 requested by defendant, were approved in the case of Ga. Pac. R. R. Co. v. Lee, 92 Ala. 264, 272, and abstractly considered, assert correct propositions of law. They were applicable to the facts in the Lee Case, supra. The injury there was at a public road crossing, but not in a town or populous district, and there was no question of a wanton injury arising from the character of the public crossing. These charges were calculated to mislead the jury in the present case, and the court committed no reversible error in refusing them. Some of the refused charges requested by defendant, were misleading, and others invaded the province of the jury.
The principles of law declared cover the case and are deemed sufficient for another trial. The court is in harmony except upon the one question, and that is as to the giving of charge No. 17.
Reversed and remanded.