GARDNER, J.
Suit by appellant against appellee for damages for personal injury received at a public road crossing in tbe town of Goodwater. Trial was bad upon counts A and B, count A relying for recovery upon simple negligence, and- count B upon wanton, or [435] willful wrongful conduct in the operation of the engine by the servants of the appellee. After a caueful review of this record we do not find support for this latter count, and it may be here eliminated from consideration. The material averments of count A were that while the plaintiff was in the act of .crossing the railroad at the public road crossing in the town of Good-water, in a buggy drawn by a mule, and while the mule was upon the track the servants of defendant, acting Avithin the scope of their employment, ran or backed an engine over the track Avhick the mule was in the act of crossing, in such close proximity to said mule that it became necessary for plaintiff to rein the mule around to prevent the same from being struck by said engine, and as a proximate consequence thereof the plaintiff was throAvn from the buggy against the ground, sustaining-injuries, etc. At the conclusion of the evidence, the court, upon the request of the defendant in writing, gave the affirmative charge in its behalf. This is the question of prime importance to be treated here.
(1, 2) There was evidence tending to show that as the engine was being backed towards and partly across this public road crossing, in the town of Goodwater, Avhich crossing Avas in constant use by the public, the AArhistle on defendant’s engine was not blown, nor the bell rung, and this would appear as sufficient (the injury resulting as a proximate consequence thereof) to make out a prima facie case as for simple negligence for submission to the jury. — Code, 1907, §§ 5473-5476; Weatherly v. N. C. & St. L. Ry., 166 Ala. 575, 51 South. 959; L. & N. R. R. Co. v. Loyd, 186 Ala. 119, 65 South. 153. “But this negligence, no more than others, does not necessarily make the railroad company liable for all injuries at crossings the result of collisions Avith its trains. This negligence -or failure to comply with the [436] statutory requirements, like all other negligence, in order to render the railroad company liable, must be actionable, and must proximately contribute to tbe injury complained of. If tbe injury complained of is tbe result of plaintiff’s negligence, or if bis negligence concurred with tbe simple negligence of defendant’s — of failing to comply with tbe statute or ordinance, in producing tbe injury complained of, tbe plainitff cannot recover. These duties required of railroads at crossings, by statute or ordinance, are no more sacred or binding than are other duties imposed by the common law, which have been announced by tbe courts and text-writers on tbe subject, no more sacred or binding on tbe railroad than are the duties which tbe common law of this country has enjoined upon tbe public in crossing railroad tracks, often declared by tbe courts, among which is tbe duty to stop-, look, and listen before crossing tbe track.” — Weatherly v. N. C. & St. L. Ry., supra.
“It is equally clear on principle and authority that this duty must be performed at such time and place with reference to tbe particular situation in each case as will enable tbe traveler to accomplish tbe purpose tbe law has in view in its imposition upon him. He must stop so near to tbe track, and bis survey by sight and sound must so immediately * * * preclude tbe injection of an element of danger from approaching trains into tbe situation between tbe time be stopped, looked, and listened and his attempt to proceed across tbe track.”— Central of Ga. Ry. Co. v. Barnett, 151 Ala. 407, 44 South. 392.
Tbe duty of one in crossing a track at a public road crossing to stop, look, and listen is commented upon extensively, and many authorities are cited, in tbe case of L. & N. R. R. Co. v. Williams, 172 Ala. 560, 55 South. [437]*437218, and the question needs no extended consideration here.
Doubtless the fact that the plaintiff’s evidence showed that while he did stop, look and listen before going upon the track, yet this was some 30 or 35 feet from the track, and at a place where his vieAV was obstructed by embankments and a stock pen, and that, without again exercising such precaution, he drove onto the track, which was doAvn grade from such point, with his mule trotting, influenced the court to give the affirmative charge for defendant upon the theory of contributory negligence, as shown by the authorities above cited. If, however, it be conceded that such facts would ordinarily justify the action of the court in so giving the affirmatice instruction for the defendant, yet we have concluded it was erroneous upon the theory of subsequent negligence, as to which we will make brief comment.
(3) That recovery may be had upon proof showing subsequent negligence, upon a complaint for simple negligence, is well settled. — L. & N. R. R. Co. v. Abernathy, Infra, 69 South. 57; A. G. S. Ry. Co. v. McWhorter, 156 Ala. 269, 47 South. 84.
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GARDNER, J.
Suit by appellant against appellee for damages for personal injury received at a public road crossing in tbe town of Goodwater. Trial was bad upon counts A and B, count A relying for recovery upon simple negligence, and- count B upon wanton, or [435] willful wrongful conduct in the operation of the engine by the servants of the appellee. After a caueful review of this record we do not find support for this latter count, and it may be here eliminated from consideration. The material averments of count A were that while the plaintiff was in the act of .crossing the railroad at the public road crossing in the town of Good-water, in a buggy drawn by a mule, and while the mule was upon the track the servants of defendant, acting Avithin the scope of their employment, ran or backed an engine over the track Avhick the mule was in the act of crossing, in such close proximity to said mule that it became necessary for plaintiff to rein the mule around to prevent the same from being struck by said engine, and as a proximate consequence thereof the plaintiff was throAvn from the buggy against the ground, sustaining-injuries, etc. At the conclusion of the evidence, the court, upon the request of the defendant in writing, gave the affirmative charge in its behalf. This is the question of prime importance to be treated here.
(1, 2) There was evidence tending to show that as the engine was being backed towards and partly across this public road crossing, in the town of Goodwater, Avhich crossing Avas in constant use by the public, the AArhistle on defendant’s engine was not blown, nor the bell rung, and this would appear as sufficient (the injury resulting as a proximate consequence thereof) to make out a prima facie case as for simple negligence for submission to the jury. — Code, 1907, §§ 5473-5476; Weatherly v. N. C. & St. L. Ry., 166 Ala. 575, 51 South. 959; L. & N. R. R. Co. v. Loyd, 186 Ala. 119, 65 South. 153. “But this negligence, no more than others, does not necessarily make the railroad company liable for all injuries at crossings the result of collisions Avith its trains. This negligence -or failure to comply with the [436] statutory requirements, like all other negligence, in order to render the railroad company liable, must be actionable, and must proximately contribute to tbe injury complained of. If tbe injury complained of is tbe result of plaintiff’s negligence, or if bis negligence concurred with tbe simple negligence of defendant’s — of failing to comply with tbe statute or ordinance, in producing tbe injury complained of, tbe plainitff cannot recover. These duties required of railroads at crossings, by statute or ordinance, are no more sacred or binding than are other duties imposed by the common law, which have been announced by tbe courts and text-writers on tbe subject, no more sacred or binding on tbe railroad than are the duties which tbe common law of this country has enjoined upon tbe public in crossing railroad tracks, often declared by tbe courts, among which is tbe duty to stop-, look, and listen before crossing tbe track.” — Weatherly v. N. C. & St. L. Ry., supra.
“It is equally clear on principle and authority that this duty must be performed at such time and place with reference to tbe particular situation in each case as will enable tbe traveler to accomplish tbe purpose tbe law has in view in its imposition upon him. He must stop so near to tbe track, and bis survey by sight and sound must so immediately * * * preclude tbe injection of an element of danger from approaching trains into tbe situation between tbe time be stopped, looked, and listened and his attempt to proceed across tbe track.”— Central of Ga. Ry. Co. v. Barnett, 151 Ala. 407, 44 South. 392.
Tbe duty of one in crossing a track at a public road crossing to stop, look, and listen is commented upon extensively, and many authorities are cited, in tbe case of L. & N. R. R. Co. v. Williams, 172 Ala. 560, 55 South. [437]*437218, and the question needs no extended consideration here.
Doubtless the fact that the plaintiff’s evidence showed that while he did stop, look and listen before going upon the track, yet this was some 30 or 35 feet from the track, and at a place where his vieAV was obstructed by embankments and a stock pen, and that, without again exercising such precaution, he drove onto the track, which was doAvn grade from such point, with his mule trotting, influenced the court to give the affirmative charge for defendant upon the theory of contributory negligence, as shown by the authorities above cited. If, however, it be conceded that such facts would ordinarily justify the action of the court in so giving the affirmatice instruction for the defendant, yet we have concluded it was erroneous upon the theory of subsequent negligence, as to which we will make brief comment.
(3) That recovery may be had upon proof showing subsequent negligence, upon a complaint for simple negligence, is well settled. — L. & N. R. R. Co. v. Abernathy, Infra, 69 South. 57; A. G. S. Ry. Co. v. McWhorter, 156 Ala. 269, 47 South. 84.
(4) There was evidence tending to show the very frequent and constant use of this crossing by the public, and that the engineer in charge of the engine at the time knew of the same and was familiar with the surroundings; that the engineer Avas standing up in his engine, backing his engine into the crossing at the time plaintiff was injured, and that he was looking at the crossing and saw plaintiff when he (the engineer) was about 50 or 60 feet from the crossing, and plaintiff was about 40 feet therefrom, approaching the crossing with his mule trotting. We take a few excerpts from testimony of the engineer as follows: “When I first saw the mule and buggy and saw Mr. Saxon he was approaching the cross-[438] mg. He was trotting the mule. I could not say as to what direction Mr. Saxon was looking. * * * I commneced to slow down at once just after I discovered him. * * I was about' 50 feet from the crossing when I commenced to stop. * * * A lady was in the buggy with Mr. Saxon when I first saw him; when the mule wheeled around she was not in the buggy. She had jumped out. As well as I could judge, the mule was about 20 or 30 feet from the outside track when the lady jumped out of the buggy. * * * I could not say how fast the mule was trotting. He was trotting at a pretty lively gait when I first saw him. * * * The time I first saw Mr. S'axon I was going three or four miles an hour. *- * * I think I was noticing Mr. Saxon from the time I first saw him until-he got to the place where the mule turned. * * * The time I first saw Mr. Saxon I was going about three or four miles an hour. I never traveled any faster than that after I saw him. * * * I don’t suppose I ran over four miles an hour at any time after I started towards the crossing. There was no one ringing the bell. The whistle was not blowing. * ':í I was looking at the crossing. * • * I was 50 or 60 feet from the public road crossing when I first undertook to stop, and this was when I first saw Mr. Saxon. I tried to stop then to keep from hitting the buggy in crossing. I believed then he was going on the crossing in front of me. That impressed me that he was going on the track ahead of me: * * * When I saw him he was coming just as fast as I was. He and I were traveling about the same rate of speed. When I saw him coming 60 feet off and saw he was in danger, I didn’t take time to do any blowing. I was stopping. To blow the whistle you pull a cord in the cab. I was standing right under it. *• * * One of my hands was on the throttle,. and the other on .the [439] brake valve. * * * You could move the brake valve with one hand and pull the cord with the other. * *
*1 did not give any kind of warning, ringing the bell •or blowing the whistle, coming on that crossing.”
Witness Walton, Avho was in the employ of defendant at the time and was on the engine, testified that Avhen he saw Saxon he gave the engineer the stop signal, and that Avhen he saw him the engine Avas going about two miles an hour; that he had been running on the local train several years, and he had frequently seen the emergency brakes put on, and that when the engine is running as fast as it was at that time eight feet is about all the distance it will run when the emergency brakes are applied, and that the train only went about that far that day after the emergency brakes Avere put on.
A discussion of the testimony is unnecessary. Suffice it to say we are of the' opinion that the record shows, and these quotations therefrom sufficiently demonstrate, that it was a question for the jury to determine as to whether or not the servants or agents of the defendant were guilty of negligence Avhich caused, or proximately contributed to, the injury, after a discovery by them of plaintiff’s dangerous position, both as to Avhether there was such negligence on the part of the engineer in failing to stop the engine earlier, and also as to his failure to give timely warning by either blowing the Avhistle or ringing the bell after he saw that plaintiff was in the act of going across the track in front of the engine Avith his mule trotting at the speed as shown above. There was evidence tending to.show that plaintiff exercised all reasonable care and diligence to avoid injury after he discovered his peril, and the above questions were such as should have been submitted to the [440] jury for their determination with appropriate instruction of the law by the court.
The rules of law governing what is termed “subsequent negligence” are now well settled, and a citation of authority where discussed is all that is necessary.— Weatherly v. N. C. & St. L. Ry. Co., 166 Ala. 575, 51 South. 959; L. & N. R. R. Co. v. Loyd, 186 Ala. 119, 65 South. 153.
The affirmative charge, given at the request of defendant, was, we conclude, error to a reversal of the case for the reasons above given.
Other questions presented are not likely to arise upon another trial of the cause, and need not be treated.
For the error indicated the judgment of the court below is reversed, and the cause is remanded.
Reversed and remanded.
Anderson, C. J., and McClellan and Sayre, JJ., concur.