STONE, C. J.
In Thompson v. Duncan, 76 Ala. 334, we held that contributory negligence is a defense, the proof of which rests on the defendant. The plaintiff need not anticipate and negative its existence. And if he aver that the injury he complains of was caused by the negligence of the defendant, without any fault or neglect of duty on his part', this does not change the burden of proof as to such contributory negligence. The defendant must still make the proof, unless plaintiff’s testimony proves also that he, plaintiff, by his own negligence, has contributed proximately to the injury.
It is contended for appellees, Chambers & Abercrombie, that we need not consider the- correctness of the court’s ruling on the plaintiff’s demurrer to their second plea; that whether their said plea was sufficient as a plea of contributory negligence, is immaterial, as that defense could be as well made under the general issue. It is not necessary we should decide this question.—Code of 1876, § 2988; Petty v. Dill, 53 Ala. 631; Trammell v. Hudmon, 56 Ala. 235; Slaughter v. Swift, 67 Ala. 494; Burns v. Campbell, 71 Ala. 271, 294. The principle invoked is applied, and rightly applied, where a demurrer has been improperly sustained to a special plea that is sufficient in law, and yet the record affirmatively shows that, under the general issue, the defendant could and did obtain the benefit of the defense he sought to set up by his special plea. In such case, if there is error, it is without injury.—Phœnix Ins. Co. v. Moog, 78 Ala. 284. The question is very different in such a case as this. Overruling the demurrer, was a judicial determination that the plea was sufficient. Plaintiff was thereby [343]*343left without discretion. He must go out of court, under the ruling on the demurrer, or he must take issue -on the plea. Taking issue upon it, he stakes the fate of his case on its truth or falsity; and if the jury find the averments of the plea to be proved, the defendant is entitled to a verdict, whether the plea be good or not.—Mudge v. Treat, 57 Ala. 1; Betancourt v. Eberlin, 71 Ala. 461. It results, that if the jury found the plea to be true as averred, the defendants were entitled to a verdict, and the only redress open to plaintiffs is to have a review of the ruling on the demurrer.
We will not consider the .general doctrine of contributory negligence. In the recent case of The Woodward Iron Co. v. Jones, at the present term, and the cases therein cited, the doctrine is so fully discussed, that we deem it unnecessary to add anything to it. What we shall have to say will be confined to tendencies of the testimony in this cause. The record affirms it contains the substance of all the testimony given on the trial.
There are two important inquiries presented by this record, upon which the testimony is not agreed. The first is, the speed at which the train was moying at the time of the collision — whether at a greater rate than four miles per hour. The second inquiry is, at what point on the side-track the hands engaged in unloading the cars had left the empty ones; whether so near the main track, as that a passing train would strike them. This last inquiry is dependent on another. There is some testimony tending to show that the empty cars, as placed by the unloading hands, were too near the main track to allow a train to pass without striking them. Other testimony tended to show that they were not so placed, but, being put in motion by a passing train, they rolled of their own unchecked gravitation down the track — at that place a downgrade — and thus collided with the passing train. All these inquiries depend on conflicting oral testimony, and are questions for the jury. If the empty cars, when the train was approaching, were so near the main track as not to allow the train to pass clear of them, then the question of the speed at which it was moving, and of its having a watchman so stationed as that he could look ahead, and see and give notice of obstructions, will become material. If this be found to be the state of the case, and if the jury shall find that moving at the rate of not exceeding four miles an hour, and having a watchman so stationed as to see and give notice, the collision might have been averted by the use of reasonable diligence, then the railroad was guilty of contributory negligence, if the train was in fact moving at a greater rate of speed, and without such appointments, one dr both. These conditions, if found to exist, will make good the defense [344]*344of contributory negligence; for no action lies for an accidental injury, which could have been averted by the exercise of reasonable diligence. These are the rules for determining this case, if the empty cars were placed too near the main track to admit of free passage.
There is, however, another possible phase of the facts. There is some testimony tending to show the empty cars were placed not too near the main track, but, being insecurely fastened or scotched, the passing train put them in motion ; and rolling down near the switch, the collision ensued. If these be the facts, the railroad company, it would seem, stands acquitted of proximate contributory negligence; for no amount of reasonable diligence could have foreseen or averted such catastrophe.
The question then would be, whether there was negligence in placing, fastening or scotching the empty cars. If there was, plaintiff would seem to be entitled to recover ; and it is not perceived that the speed of the moving train would be a factor in this alternate aspect of the case. We may add that, according to the testimony in this cause, both the Gas-Light Company and Chambers & Abercrombie are liable for any negligence that may have been committed in placing the empty cars, if there was such negligence. Negligence of the servant, committed while performing a service within the scope of his authority, by which another is injured, renders the master liable. — Wood’s Mas. & Serv. 536, § 279; Shear. & Eed. on Neg. § 115.
To the second plea of defendants, Chambers & Abercrombie, there was a demurrer, which the Circuit Court overruled. The gravamen of the defense set up in that plea is contributory negligence. In the ninth assigned cause of demurrer is the language, “the acts alleged in said plea are not shown to have been the proximate cause of the injury complained of.” The plea sets up several alleged omissions of duty by the railroad company — running backwards at a greater rate of speed than four miles an hour — no proper and sufficient provision for giving signals to the engineer in case of danger — and adds, “that said side-track was made by plaintiff in an unskillful and improper manner.” This last averment is made a very important factor in the make-up of the plea, and yet it is what in law is generally a question of remote, in contradistinction to proximate contributory negligence.—S. & N. Ala. Railroad Co. v. Williams, 65 Ala. 74. The plea concludes: “ By reason of all which said negligence of plaintiff, the said alleged injury was caused, and said negligence of plaintiff contributed to cause said injury ; and but for said negligence of plaintiff, the alleged injury would not have occurred.” In Beach on Contr. Neg. 7, § 3, it is said: “Contributory negligence, in its [345]*345legal signification, is such an act of omission on the part of a plaintiff, amounting to a want of ordinary care, as, concurring or co-operating with the act of defendant, is a proximate cause or occasion of the injury complained
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STONE, C. J.
In Thompson v. Duncan, 76 Ala. 334, we held that contributory negligence is a defense, the proof of which rests on the defendant. The plaintiff need not anticipate and negative its existence. And if he aver that the injury he complains of was caused by the negligence of the defendant, without any fault or neglect of duty on his part', this does not change the burden of proof as to such contributory negligence. The defendant must still make the proof, unless plaintiff’s testimony proves also that he, plaintiff, by his own negligence, has contributed proximately to the injury.
It is contended for appellees, Chambers & Abercrombie, that we need not consider the- correctness of the court’s ruling on the plaintiff’s demurrer to their second plea; that whether their said plea was sufficient as a plea of contributory negligence, is immaterial, as that defense could be as well made under the general issue. It is not necessary we should decide this question.—Code of 1876, § 2988; Petty v. Dill, 53 Ala. 631; Trammell v. Hudmon, 56 Ala. 235; Slaughter v. Swift, 67 Ala. 494; Burns v. Campbell, 71 Ala. 271, 294. The principle invoked is applied, and rightly applied, where a demurrer has been improperly sustained to a special plea that is sufficient in law, and yet the record affirmatively shows that, under the general issue, the defendant could and did obtain the benefit of the defense he sought to set up by his special plea. In such case, if there is error, it is without injury.—Phœnix Ins. Co. v. Moog, 78 Ala. 284. The question is very different in such a case as this. Overruling the demurrer, was a judicial determination that the plea was sufficient. Plaintiff was thereby [343]*343left without discretion. He must go out of court, under the ruling on the demurrer, or he must take issue -on the plea. Taking issue upon it, he stakes the fate of his case on its truth or falsity; and if the jury find the averments of the plea to be proved, the defendant is entitled to a verdict, whether the plea be good or not.—Mudge v. Treat, 57 Ala. 1; Betancourt v. Eberlin, 71 Ala. 461. It results, that if the jury found the plea to be true as averred, the defendants were entitled to a verdict, and the only redress open to plaintiffs is to have a review of the ruling on the demurrer.
We will not consider the .general doctrine of contributory negligence. In the recent case of The Woodward Iron Co. v. Jones, at the present term, and the cases therein cited, the doctrine is so fully discussed, that we deem it unnecessary to add anything to it. What we shall have to say will be confined to tendencies of the testimony in this cause. The record affirms it contains the substance of all the testimony given on the trial.
There are two important inquiries presented by this record, upon which the testimony is not agreed. The first is, the speed at which the train was moying at the time of the collision — whether at a greater rate than four miles per hour. The second inquiry is, at what point on the side-track the hands engaged in unloading the cars had left the empty ones; whether so near the main track, as that a passing train would strike them. This last inquiry is dependent on another. There is some testimony tending to show that the empty cars, as placed by the unloading hands, were too near the main track to allow a train to pass without striking them. Other testimony tended to show that they were not so placed, but, being put in motion by a passing train, they rolled of their own unchecked gravitation down the track — at that place a downgrade — and thus collided with the passing train. All these inquiries depend on conflicting oral testimony, and are questions for the jury. If the empty cars, when the train was approaching, were so near the main track as not to allow the train to pass clear of them, then the question of the speed at which it was moving, and of its having a watchman so stationed as that he could look ahead, and see and give notice of obstructions, will become material. If this be found to be the state of the case, and if the jury shall find that moving at the rate of not exceeding four miles an hour, and having a watchman so stationed as to see and give notice, the collision might have been averted by the use of reasonable diligence, then the railroad was guilty of contributory negligence, if the train was in fact moving at a greater rate of speed, and without such appointments, one dr both. These conditions, if found to exist, will make good the defense [344]*344of contributory negligence; for no action lies for an accidental injury, which could have been averted by the exercise of reasonable diligence. These are the rules for determining this case, if the empty cars were placed too near the main track to admit of free passage.
There is, however, another possible phase of the facts. There is some testimony tending to show the empty cars were placed not too near the main track, but, being insecurely fastened or scotched, the passing train put them in motion ; and rolling down near the switch, the collision ensued. If these be the facts, the railroad company, it would seem, stands acquitted of proximate contributory negligence; for no amount of reasonable diligence could have foreseen or averted such catastrophe.
The question then would be, whether there was negligence in placing, fastening or scotching the empty cars. If there was, plaintiff would seem to be entitled to recover ; and it is not perceived that the speed of the moving train would be a factor in this alternate aspect of the case. We may add that, according to the testimony in this cause, both the Gas-Light Company and Chambers & Abercrombie are liable for any negligence that may have been committed in placing the empty cars, if there was such negligence. Negligence of the servant, committed while performing a service within the scope of his authority, by which another is injured, renders the master liable. — Wood’s Mas. & Serv. 536, § 279; Shear. & Eed. on Neg. § 115.
To the second plea of defendants, Chambers & Abercrombie, there was a demurrer, which the Circuit Court overruled. The gravamen of the defense set up in that plea is contributory negligence. In the ninth assigned cause of demurrer is the language, “the acts alleged in said plea are not shown to have been the proximate cause of the injury complained of.” The plea sets up several alleged omissions of duty by the railroad company — running backwards at a greater rate of speed than four miles an hour — no proper and sufficient provision for giving signals to the engineer in case of danger — and adds, “that said side-track was made by plaintiff in an unskillful and improper manner.” This last averment is made a very important factor in the make-up of the plea, and yet it is what in law is generally a question of remote, in contradistinction to proximate contributory negligence.—S. & N. Ala. Railroad Co. v. Williams, 65 Ala. 74. The plea concludes: “ By reason of all which said negligence of plaintiff, the said alleged injury was caused, and said negligence of plaintiff contributed to cause said injury ; and but for said negligence of plaintiff, the alleged injury would not have occurred.” In Beach on Contr. Neg. 7, § 3, it is said: “Contributory negligence, in its [345]*345legal signification, is such an act of omission on the part of a plaintiff, amounting to a want of ordinary care, as, concurring or co-operating with the act of defendant, is a proximate cause or occasion of the injury complained of.”—Thompson v. Duncan, 76 Ala. 334. The demurrer to this plea ought to have been sustained.
The second and third charges given at the instance of Chambers & Abercrombie present substantially the same question, and we will consider them together. We do not doubt that, in many cases, if ordinary care be exercised, an honest mistake will be held to entail no liability on him who makes it. But charges must be interpreted in reference to the issue involved, and the testimony in the cause. In this case, the authority was to place the cars at some convenient point near the switch, so as to bo accessible when it should become desirable to remove them, but not to place them so near that they would obstruct transit on the main track. All men know' that a side-track approaches'the main track by an acute angle, until they become one at the switch. All men know that cars are broader than the iron track of the road on which they rim. Hence, all men know that the cars extend beyond the rail on either side. All men must know that to allow one train or car to pass another on parallel tracks, the interval between the tracks must be double the projection of the car beyond the rail, with a margin for contingencies. The commonest knowledge can not fail to comprehend each of these axiomatic and mathematical truths. The commonest prudence, in such service as was required here, will dictate that, if error be committed, it should be on the safe side, and would suggest the placing of a stationary car so far from the switch as to be beyond the point of possible danger! Mistakes, in such a service as the one we have in hand, constitute no answer for a claim for actual damages. As well might á trespasser claim exemption, when he goes by mistake across an unmarked line, and cuts timber from his neighbor’s freehold.—See Cooley on Torts, 396; 2 Whar. Ev. § 1028; City Nat. Bank v. Jeffries, 73 Ala. 183; Jackson v. Smith, 75 Ala. 97. These charges should not have been given.
We discover no error in the other rulings.
Heversed and remanded.
Crouton, J., not sitting.