was a failure on the part of the railroad company to comply with section 5473 (3440) of the Code.

where plaintiff himself was guilty of contributory negligence, unless the defendant was guilty of wanton negligence or willful injury; but a close examination of such cases will show that in each the negligence of

to the very time of the injury, and was therefore the efficient and direct cause of the injury, without which, it being so continuing and concurring, the injury would not have happened. In these cases the negligence of the plaintiff was clearly the "causa causans." Frazer's Case, 81 Ala. 185, 1 South. 85, 60 Am. Rep. 145. In Tanner's Case, 60 Ala. 621, the rule is applied, and held to be, that the plaintiff's negligence was no defense, if the defendant could thereafter, by the exercise of reasonable care, have avoided injuring him. In Cook's Case, 67 Ala. 539, it is said that, where an injury is perpetrated by a defendant either wantonly, recklessly, or intentionally, the defense of plaintiff's contributory negligence is thereby overcome and vitiated; but such conduct on the part of the defendant, says the court, is not necessary in order to establish his liability, though the negligence on the part of plaintiff may have co-operated to produce the damage-affirming and following Tanner's Case, and Gothard's Case, 67 Ala. 114, and qualifying Hanlon's Case, 53 Ala. 70.

The next inquiry is: Was or could it be inferred by the jury that this negligence proximately contributed to or used the the plaintiff was concurrent and continuing death, or was the death the result of, or proximately caused by, intestate's own negligence, did plaintiff's own evidence affirmatively show this, or was it a mere accident for which no one is responsible, or was the jury authorized to infer wanton negligence or willful injury from this evidence, so as to avoid the contributory negligence of plaintiff's intestate, if found to exist? The mere concurrence of negligence on the part of a defendant, with injury to the plaintiff, does not always make a cause of action for the injury. The negligence of the defendant must proximately contribute to the injury; that is, but for the negligence, the injury would not have happened. The same is true as to the plaintiff's negligence. The mere fact that a plaintiff was guilty of negligence when he was injured by defendant's negligence does not defeat his action for the injury. To do this his negligence must have proximately contributed to his own injury. There is, however, a class of cases in which a plaintiff will be entitled to recover for an injury suffered when he was guilty of negligence, and when, but for his negligence, the injury would not have happened. This class of cases is where the negligence of the plaintiff precedes that of the defendant; that is, where the defendant was guilty of negligence which directly caused or proximately contributed to the injury after the plaintiff's negligence, and the defendant, by the exercise of reasonable care after knowledge of the plaintiff's negligence, could have avoided the injury. This class is denominated "subsequent negligence" and "last clear chance" cases. This same doctrine or rule also applies to defeat plaintiff's right of recovery, when he has the last chance to avoid the injury and negligently fails so to do, or is thereafter guilty of the last act of negligence which proximately contributes to his injury, which, but for his negligence, would not have resulted. This doctrine or rule had its origin in England, being first announced in the case of Davis v. Mann, 10 Mus. 7 & Wer. 546, in which the owner of a donkey turned it out upon the streets with its feet fettered and clogged, and a traveler on the highway negligently drove a wagon against it, and killed it.

If a person voluntarily places himself in an obviously dangerous position on a railroad track, or so near thereto as to be struck by passing trains, thereby assuming the risk, and while there continues to use no proper means of discovering the danger, or, on discovering it, continues in the dangerous position without attempting to avoid it, and, in consequence thereof, is struck by a passing train, he cannot recover, in the absence of wanton negligence or willful injury on the part of the railroad company; but if, after discovering his peril, the result of his contributory negligence, he attempts to avoid the injury, and the railroad company is thereafter guilty of any negligence, simple or wanton, which proximately contributes to his injury, the railroad company is liable. Authorities, supra; Richards' Case, 100 Ala. 365, 13 South. 944; Lee's Case, 92 Ala. 262, 9 South. 230.

Except at public crossings and a few other places, the track and right of way of a railroad are its exclusive property, upon which a stranger has no right to be, and to those who trespass thereupon it owes no duty as a rule, except not to wantonly or willfully

The doctrine has since spread to the Unit-injure them. But at public crossings a difed States, and has been announced, clarified, ferent rule prevails. There the public have and amplified by most all the courts of the a right to use the public street, road, or highUnion, state and federal. It is only necessa- way, to travel along it, on foot or in vehicles, ry to state the rule or doctrine as it has been and to cross the railroad track, if necessary announced in this state and applied to in- to use the highway. The rights of the pubjuries caused at railroad crossings. Some of lic and of the railroad to use the streets or the cases in this state seem to deny the plain- highways where they are crossed or occutiff's right to recover for personal injuries pied by a railroad track are mutual and reinflicted by a railroad at a public crossing ciprocal. But, owing to the great weight,

does not, without more, conclusively make the railroad liable therefor. Nor does the doctrine of "res ipsa loquitur" apply. If it did, it would speak the negligence of the plaintiff as much as that of the railroad. It is true that the statute renders the railroad liable for the injury if it results from a failure to comply with the statutory regulations, and places the burden of proof upon the railroad to show a compliance with the statutory duties imposed in such cases. But the effect of the statute is to impose certain duties upon the railroad company which might not otherwise exist, and to place the burden of proof upon the railroad to show that it discharged these duties thus imposed by the statute. The statute does not have the effect to render the railroad absolutely liable for injuries occurring at crossings, irrespective of negligence on its part which caused or contributed to the injury. If it did, it would clearly be unconstitutional. Zeigler's Case, 58 Ala. 594; Parson's Case, 100 Ala. 662, 13 South. 602, 27 L. R. A. 263, 46 Am. St. Rep. 92; Hembree's Case, 85 Ala. 481, 5 South. 173; Green's Case, 73 Ala. 26; Davis v. State, 68 Ala. 58, 44 Am. Rep. 128; Larkin's Case, 66 Ala. 87; Wilburn's Case, 63 Ala. 436.

momentum, and speed of commercial trains,, injured by a railroad at a public crossing they have the right of way at public crossings. They are confined to a fixed track upon the rails, and cannot turn to right or left to avoid collisions, as can other travelers upon the highway. Yet this right of precedence as to crossings does not exempt the railroad from the duty to try to avoid collisions thereat. The public and the railroad must resort to reasonable and proper efforts, considering all the attendant circumstances in each particular case to avoid the injury. Each may to a limited and reasonable extent rely upon the other to exercise reasonable and ordinary care to avoid injury by collisions. The track itself is a warning to the public of dangers, and travelers should inform themselves as to the proximity of trains before attempting to cross. They must stop. look, and listen for trains before attempting to cross the railroad track, unless there be some fact to excuse them of this duty. Certain duties of railroads as to public crossings are often prescribed by statute and by municipal ordinance, and some of such duties are so provided in this state. Code, §§ 5473-5476. But providing these duties by statutes and by ordinance does not exempt the railroad from all other duties which are reasonable to avoid injury or collision at crossings.

A railroad which violates any of these duties imposed by statute or ordinance as to public crossings is at least guilty of simple negligence per se, and, if the omission is established, such negligence arises as matter of law. The statute (section 5476) makes the railroad liable for all injury to persons or property from a failure to comply with the statutory duties as to crossings, and also places the burden upon the railroad to show compliance with its statutory duties. But this negligence, no more than other, does not necessarily make the railroad company liable for all injuries at crossings the result of collisions with its trains. This negligence of failure to comply with the statutory requirements, like all other negligence, in order to render the railroad company liable, must be actionable, and must proximately contribute to the injury complained of. If the injury complained of is the result of plaintiff's negligence, or if his negligence concurred with the simple negligence of defendant's-of failing to comply with the statute or ordinance -in producing the injury complained of, the plaintiff 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 the courts and text-writers on the subject, no more sacred or binding on the railroad than are the duties which the common law of this country has enjoined upon the public in crossing railroad tracks, often declared by the courts, among which is the duty to stop, look, and listen before crossing the track.

As a rule, the mere failure to comply with the duties imposed by statutes and ordinances upon railroads at public crossings constitutes only simple negligence. This has often been declared by this court. Lee's Case, 92 Ala. 262, 9 South. 230; Sampson's Case, 91 Ala. 560, 8 South. 778; Martin's Case, 117 Ala. 382, 23 South. 231; Orr's Case, 121 Ala. 489, 26 South. 35; Mitchell's Case, 134 Ala. 266, 32 South. 735. Yet we do not think that it is impossible for the failure to comply with these duties to be so gross, reckless, and wanton as to amount to wanton misconduct. The failure to comply with these duties, just like the failure to comply with other duties, however imposed, may be so gross, reckless, and wanton as to evince an absolute disregard of the rights of others, and an absolute indifference to the injury of persons and property; and in such cases may render the act which violates the duty wanton negligence, thus making the wanton act as culpable as if the injury had been willfully inflicted, though there be no specific intent to inflict the injury, or specific knowledge or consciousness that the particular injury would result from the wrongful act; that is, negligence may be so gross and reckless as to be wantonness, which may render the party as guilty as if the injury were willfully inflicted. To illustrate, suppose a railroad should pass through a populous city, and along one of its public streets usually crowded and thronged with travelers, and other streets of like kind crossed the street in which was laid the railroad track, all of which was known to the agents in charge of the trains, and that the railroad company should run its

law."

such city on such street at the rate of 50, | tive rights, and are under mutual obligations 60, or 70 miles per hour, and with no more at public crossings and in the use of them. precaution than it employs in running these The doctrine of sic utere tuo ut alienum non trains through the country on its own ex- lædas applies alike to persons and corporaclusive roadbed; it would therefore be im- tions. The value of human life cannot be possible to prevent accidents and injuries at overbalanced by any pecuniary or public inthese crossings, no matter how careful the terest. Our duty is simply to declare the public might be. This we think might well The evidence showed that intestate be held to be such an act as to constitute was killed by a regular passenger train of wantonness, though there be no specific in- defendant's at a public street crossing in the tent to injure any particular person or prop- city of Gadsden; that the train was coming erty. It might be said to be universal malice. into Gadsden from the North at schedule Our court has frequently so decided as to in- time, which was about 8 o'clock in the evenjury both to persons and property by rail- ing. The whistle was blown at the signal roads. post, about a quarter of a mile from the place

post until it reached a point about 150 or 300 feet from the crossing, and from that distance the track was straight to the crossing. The headlight was burning, and the train was running 25 to 30 miles per hour. It was not

whistle sounded or brake applied, or that the speed was checked from the signal post until the train was within 20 or 30 feet of the place where intestate was struck. The evidence showed that at this point the steam was shut off, brake applied, alarm sounded, and bell rung; but the train was not stopped until it had passed the place of the injury several hundred feet. The only evidence as to the position of the deceased was that he was seen standing by the side of the track just as the danger signal was given, and when the train was within 20 or 30 feet of him. There was a boarding house on one side of the track at this crossing and a storehouse on the other. At the hour and place of the accident travel along and over the street crossing was much and frequent. The street had been used as a public street of the city for a long time, and was much traveled by the public. The engineer in charge of the locomotive which caused the accident had been running on the defendant's road and this particular run for some time prior to the accident.

The following has often been announced to of the accident. The railroad track, as it ap be the law in this state as to this proposi-proached the crossing, curved from the signal tion: "To run a train at a high rate of speed and without signals of approach at a point where the trainmen have reason to believe there are persons in exposed positions on the track, as over an unguarded crossing in a populous district of a city, or where the pub-made certain whether any bell was rung or lic are wont to pass on the track with such frequency and in such numbers, facts known to those in charge of the train, as that they will be held to a knowledge of the probable consequence of maintaining great speed without warnings, so as to impute to them reckless indifference in respect thereto, would render their employer liable for injuries resulting therefrom notwithstanding there was negligence on the part of those injured, and no fault on the part of the servants after seeing the danger." Lee's Case, 92 Ala. 271, 9 South. 230; Meadors' Case, 95 Ala. 137, 10 South. 141; O'Shields' Case, 90 Ala. 29, 8 South. 248; Webb's Case, 97 Ala. 312, 12 South. 374; Martin's Case, 117 Ala. 383, 23 South. 231; Id., 131 Ala. 279, 30 South. 827; Rice's Case, 142 Ala. 677, 38 South. 857; Id., 144 Ala. 613, 38 South. 857; Foshee's Case, 125 Ala. 199, 27 South. 1006. Railroad companies that knowingly run their trains under conditions rendering it impracticable for those in charge to prevent injury to stock straying upon their tracks are accountable for the injury, except in those cases in which the injury cannot be ascribed to the company's negligence. Hewitt's Case, 139 Ala. 443, 36 South. 39, 101 Am. St. Rep. 42; Harris's Case, 98 Ala. 326, 13 South. 377; Davis's Case, 103 Ala. 661, 16 South. 10; Cochran's Case, 105 Ala. 354, 16 South. 797; Kelton's Case, 112 Ala. 533, 21 South. 819; Stark's Case, 126 Ala. 367, 28 South. 411; Anchors' Case, 114 Ala. 493, 22 South. 279, 62 Am. St. Rep. 116; Brinkerhoff's Case, 119 Ala. 606, 24 South.

Under the evidence shown by the record in this case, we think the question of the degree of the defendant's negligence, of its result, and of the plaintiff's negligence should have been submitted to the jury under proper instructions as to the law applicable to the case, as in this opinion we have endeavored to expound it. We do not think the court can as matter of law say that intestate's negligence proximately contributed to his injury, or that it succeeded or concurred with that If this is true as to live stock, ought it not of the defendant to produce the injury; or to be, and is it not, true as to injuries to per- that the evidence did not tend to show, or to sons at public crossings? As is said by Cole- authorize the jury to infer, that the defendman, J., in Martin's Case, 117 Ala. 385, 23 ant was not guilty of wantonness which conSouth. 231: "It is earnestly contended by ap-tributed to, or resulted in plaintiff's intespellant that such a rule will greatly impede tate's death. It was competent for plaintiff commercial transactions, and directly impair to prove the extent and frequency of travel the efficiency of transportation by railroads. along the street which intestate was travel

892.

propounded to show this were probably lead- | contained an option to plaintiff to repurchase ing, and for that reason objections thereto were properly sustained; but, as to some of them, we doubt if this ground was good, though it is not necessary for us to decide the point, as the case must be reversed. How ever, questions can and should be so framed as not to violate the rules of evidence.

A contract for the sale of timber by plaintiff to defendant gave plaintiff an option to repurchase the lumber sawed therefrom; delivery A contract, by which plaintiff sold defend- of the lumber to be made in all respects as ant the standing timber on a tract of land, in deliveries were then made by defendant to G. & consideration of an option to plaintiff to pur- Co., under an existing contract between them. chase the lumber manufactured from the timber, Held, that the delivery specified in the G. & Co. held entire, and that the option, with the provi- contract referred to the manner of delivery prosions with regard to the purchase of the lum-vided in that contract, and not to any other ber, became a part of the contract; and neither delivery which the parties to that contract may party could cancel the part relating to the sale have sanctioned. of the lumber without canceling the entire contract.

formance to which the contract binds the promisor, and it must be distinct and unequivocal. [Ed. Note. For other cases, see Contracts, Dec. Dig. § 258.*]

7. SALES (§ 108*)-SALE OF TIMBER AND REPURCHASE OF LUMBER-RESCISSION.

A contract of sale of standing timber by plaintiff to defendant contained an option for the purchase by plaintiff of the lumber sawed therefrom, which provided for the delivery and measurement of the lumber. After several deliveries of the lumber had been made and paid for, two rafts of the sawed lumber were delivered, and plaintiff refused to pay for them according to the defendant's specification; but, after defendant had given notice of rescission therefor, the money was tendered to defendant in accordance with its demands, and the construction of the contract was reserved by plaintiff for future determination. Held, that plaintiff's temporary refusal to pay was not ground for defendant's rescission, since, where a party wishes to rescind a contract, he must notify the opposite party and give him a reasonable time to comply with the terms of the contract, so that the contract was not so rescinded by defendant's notice of rescission as not to be revived by the subsequent offer of plaintiff.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 277-279; Dec. Dig. § 108.*] 8. LOGS AND LOGGING (§ 34*)-SALE OF TIMBER AND REPURCHASE OF LUMBER-DECISION OF INSPECTOR CONCLUSIVENESS FRAUD.

A contract of sale of standing timber, by which defendant gave plaintiff an option to repurchase the lumber manufactured therefrom, provided for payment in cash on delivery of specifications, and that the lumber should be inspected at the seller's expense by a person named, "whose inspection shall be final." Held, that the purpose of the provision as to inspection was to ascertain its grade before the lumber was accepted, and whether it was in accordance with the contract, and such inspection was conclusive on both parties, except for fraud; but an error in the average of the lumber delivered, where both parties had the lumber and all the facts before them and agreed on the average and inspection then made, could not be inquired into on the ground of fraud. [Ed. Note. For other cases, see Logs and Logging, Dec. Dig. § 34.*]

9. Sales (§ 418*)-SALE OF TIMBER AND REPURCHASE OF LUMBER-BREACH-DAMAGES. Where plaintiff sells defendant the standing timber on a tract of land and elects, under an option in the contract, to repurchase from defendant the lumber sawed therefrom, and defendant attempts to rescind the contract to resell to plaintiff on insufficient grounds, and proceeds to sell the lumber to other persons, defendant is liable for damages for the breach of the contract, and defendant cannot complain that the measure of damages for violating the contract is fixed at the difference between the contract price and the price at which the lumber was sold.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.*]

The bill was for a discovery and a statement of account and construction of the contract. The cross-bill sought an abatement of the original purchase price to the extent of the purchase price of 380 acres to which the complainants had no title. The pleadings in the case were settled on the former appeal, found in 154 Ala. 416, 45 South. 909. The contract referred to in the opinion is as fol

lows:

"By agreement made on February 7, 1902, between Hunter, Benn & Co.'s Company, a corporation, and J. M. Ackley & Co., a partnership, naming the partners, the HunterBenn Company, being the owners of the following described land, situated in Choctaw county, Alabama, to wit: [Here follows description of the land by government subdivision]—does hereby sell and convey to J. M. Ackley & Co. all of the pine trees standing upon the said land which are of such size that, when all of them shall have been manufactured into sawn timber, the average of the entire lot shall be not less than 30 cubic feet per stick. It is understood between the parties hereto that it is not practicable to log any lands so that the timber manufactured from such logs shall average an exact number of feet per stick, and it is agreed that in this case such reasonable variations from a 30foot average as may result from this cause shall not be deemed a violation of this contract or entitle either party to claim anything from the other on account of such variation.

"(2) Ackley & Co. agree to pay for said stumpage upon said lands the sum of $9 per acre, such payments to come out of the proceeds of the timber cut from said lands, and to be made immediately after the sale of each raft or lot of said timber, and in all respects as herein before shown. It is supposed that the said lands upon the average will cut about Such time as one or the other of the parties nine of said timber logs per acre, and until hereto shall request a change in that respect under the provisions thereof there shall be paid to the said Hunter, Benn & Co.'s Company the sum of $1 out of the proceeds of each stick of said payment. Should either of the said parties at said time request that the amount of said payments be changed, and the parties hereto cannot agree thereon, then all of said lands shall be estimated by some disinterested and competent timber estimator, to be chosen in the manner hereinafter shown, and such estimate shall be binding upon both parties hereto. Should the said estimate

Appeal from Chancery Court, Mobile Coun- show that the said lands will cut more than

ty; Thomas H. Smith, Chancellor.

nine sticks of 30-foot average timber per acre, Bill by the Hunter, Benn & Co.'s Compa- then the payment to be made from the prony against J. M. Ackley & Co., and cross-bill ceeds of each stick as sold shall be decreased by Ackley & Co. against the Hunter-Benn | proportionately. Should the said estimate Company. Decree for complainant, and re- show that the said lands will not cut as maspondent appeals. Affirmed. ny as nine sticks of such timber per acre, the payments per stick shall be increased pro

See, also, 154 Ala. 416, 45 South. 909.