#### Seaboard A. L. Ry. Co. *v.*Hudgins.

*Grossing Accident.*

(Decided February 5, 1914.

64 South. 666.)

1. *Railroads; Grossing Accident; Duty to Stop and Loolo.*— Where a traveller in a vehicle approaching a railroad crossing stops so far from it as not to be able to discover the danger from an engine or train then near it, he is bound to stop at some point near the crossing where he can discover the danger in crossing.

2. *Same.*— AYhere a traveller in a vehicle stops near enough to a public crossing to discover an engine at a standstill some distance *299away, and sees tbe engine again when about forty yards from the crossing, which has given no warning signal that it has started, his negligence in attempting to cross without stopping again is for the jury.

Appeal from St. Clair Circuit Court.

Heard before Hon. J. E. Blackwood.

Action by A. D. Hudgins against the Seaboard Air Line Railway Company for damages for injury to person and property suffered by a collision at a crossing. Judgment for plaintiff and defendant appeals.

Affirmed.

Tillman, Bradley & Morrow, and L. C. Leadbeater, for appellant.

Defendant was entitled to the affirmative charge on count *2.*— Peters *v. 8a. By.,*135 Ala. 503; *C. of Ga. v. Foshee,*125 Ala. 199; *G. of Ga. v.*Barnett, 151 Ala. 407. Under these authorities defendant was also entitled to the affirmative charge as to the third count. Counsel discuss the action of the court in overruling motion for new trial, but without further citation of authority.

Bonditrant & Smith, for appellee.

No brief reached the Reporter.

WALKER, P. J.

There was evidence tending to prove that the plaintiff’s minor son, as he was riding in a buggy at night and approaching the place of crossing of the defendant’s track and the street in the town of Odenville on Avhich he Avas traveling, stopped the buggy about 50 or .75 yards from the crossing, looked and listened for an approaching train or engine, and discovered nothing to indicate the proximity of either except the light of an engine Avhich Avas standing still 150 or 200 yards from the crossing;. that, proceeding then toAvards the crossing, and after passing a building, *300and when about *40*yards from the crossing, he again saw the light of the engine as before, and did not stop again before going upon the track, where the buggy Avas struck by the rear end of the train, which the engine Avhich he had seen was then slowly backing over the crossing; and that the engine Avas put in motion Avithout the hell being rung or the Avhistle blown, and when there was no light on the rear of the train Avhich was in view of the occupants of the buggy, who did not discover the approach of the train until immediately before the collision.

It is contended in behalf of the appellant (defendant beloAv) that it was a necessary inference-from the undisputed evidence in the case that the plaintiff’s son was guilty of negligence in failing to make another stop before undertaking to drive over the track. It is insisted in argument that this conclusion folloAvs from an application to the evidence in the case of the rules stated in the cases of *Central of Georgia Ry. Co. v. Foshee,*125 Ala. 212, 27 South. 1006, and *Central of Georgia Ry. Co. v. Barnett,*151 Ala. 407, 44 South. 392. Those rulings are to the effect that a traveler in a vehicle Avho, on approaching a railroad crossing, stops so far from it as not to be able to discover the danger from an engine or train then in proximity to it, is not relieved of the duty of stopping at some point nearer the crossing Avhere he could discover the peril in proceeding-farther. A different case is presented Avhen such a traveler stops near enough to a much-used public crossing-in a town to ascertain the situation with reference to it of an engine then in its vicinity and discovers that such engine is at a standstill some distance from the crossing. If Avith this situation disclosed to him the traveler proceeds on his Avay, seeing the engine again when he is about 40 yards from the crossing, and, in the *301absence of any sound of a whistle blcnvn or bell rung or of anything to give warning that the engine has been put in motion, undertakes to go over the crossing without stopping again, the question as to whether he Avas or Avas not negligent in doing so is one for the jury. We are not of opinion that it can properly be said as a matter of law that one so acting in such circumstances is chargeable Avith negligence for failing to anticipate that the engine might, without any signal or Avarning at all, be put in motion to back a train in the dark over the crossing. The- conclusion is that the defendant Avas not, on the theory that the evidence without conflict sustained one or both of its pleas of contributory negligence, entitled to require the court to give either of the Avritten charges requested in its behalf.

The result of applying the familiar rules governing the revieAV oh appeal of the action of a trial court on a motion for a new-trial is that the assignment of error based upon the overruling of the defendant’s motion- for a neAV trial cannot be-sustained.

Affirmed.