bility, complainant must present some proof from which such motive may be legally inferred: Haines v. Schultz, 50 N. J. L. 481. While courts will allow liberal compensatory damages against railway companies for gross fault and negligence resulting in severe injuries to passengers, still railway companies are and should always be entitled to protection against exaggerated and stale claims for injuries, particularly when such injuries are slight and nominal: Maher v. Louisville etc. R'y Co., 40 La. Ann. 64. Exemplary damages can never be allowed in the absence of actual damages: Kuhn v. Chicago etc. R. R. Co., 74 Iowa, 137. CONTRIBUTORY NEGLIGENCE.- Instances of what is contributory negligence: See note to Virginia Midland R. R. Co v. White, 10 Am. St. Rep. 882; Harris v. Township of Clinton, 64 Mich. 447; 8 Am. St. Rep. 842, and cases and instances enumerated in note thereto 850, 851. Where a highway crosses a double track, over which cars are liable to run frequently in opposite directions, it is contributory negligence for a traveler thereon, whose view of the second track is obscured by the presence of a passing car on the track nearer him, to pass quickly upon the crossing as soon as the first train passes, without waiting to look or listen for the approach of a train in the opposite direction on the second track: Marty v. St. Paul etc. R'y Co., 38 Minn. 108. An employee of a railway who voluntarily puts himself in a dangerous position at a time and place when and where he has no right to be, and when he must have known that the company did not require his presence, and is injured because of his own want of common prudence, cannot recover of the company for such injury: Loeffler v. Missouri Pac. R'y Co., 96 Mo. 267. A railway company is compelled oftentimes by the necessity of its business to permit crossings at its depots to be temporarily obstructed by its trains; and a person who is injured at such a crossing at such a time cannot recover because of such obstruction, unless the crossing was kept closed for an unreasonable length of time, and the injury was the proximate result of the company's unreasonable delay in removing the train from the crossing: Barkley v. Missouri Pac. R'y Co., 96 Mo. 367. Although a railway company may be negligent in failing to give proper warnings of the approach of a train, a person injured cannot recover therefor unless it be affirmatively shown that he was free from contributory negligence; for if by looking he could have seen an approaching train in time to escape, it will be presumed, in case he is injured by a collision, that he did not look, or if he did look, he failed to heed what he saw; and such conduct would of itself be contributory negligence barring recovery: Ohio & M. R'y Co. v. Hill, 117 Ind. 56. A person who enters upon a railway track at a crossing when gates with signal-lanterns are down, and passes in front of an approaching train already upon the crossing, and is killed by another train running upon another track at its usual speed and on time, is guilty of contributory negligence which will prevent any recovery for his death: Granger v. Boston & A. R. . Co., 146 Mass. 276. Where plaintiff's own negligence is the proximate cause of injury to himself, by reason of his placing himself between two railroad tracks, at a place where he should not have been, in the due performance of his duty as an employee of the company, and with his back toward an approaching train, which strikes him, he cannot recover, even though the company displayed no light upon the ap. proaching train, and did not comply with a municipal ordinance: Ryall v. Central Pac. R. R. Co., 76 Cal. 474. One who receives an injury from the negligence of another, and neglects to use such means to effect a recovery as a prudent man would use under like circumstances, cannot recover for the aggravation of his injuries accruing from such neglect: Railway Co. v. MeManne, 70 Tex. 74; compare Brown v. Griffin, 71 Id. 654. Intoxication does not excuse a man from the exercise of that care and prudence the want of which under other circumstances would constitute contributory negligence: Missouri Pac. R'y Co. v. Evans, 71 Id. 362. CENTRAL CITY INSURANCE COMPANY V. OATES. [86 ALABAMA, 558.| INSURANCE - CONDITIONS AS TO NOTICE AND PROOF OF Loss. Stipula tions in a fire insurance policy that the insured will forthwith give notice of loss, and render a particular and sworn account of such loss, accompanied with a magistrate's certificate thereof, are conditions precedent; and satisfactory evidence of compliance with them in proper time is an essential prerequisite to recovery, unless such compliance is waived by the insurer. INSURANCE-CONDITION AS TO NOTICE OF Loss. Condition in a fire insurance policy that notice of loss must be given "forthwith” means that it must be given without unnecessary delay, or with reasonable diligence, under the circumstances of each particular case. Such condition is liberally construed in favor of the assured, and strictly against the insurer. INSURANCE-CONDITIONS-PROOF OF LOSS-WAIVER. - Where a fire insurance policy requires preliminary proofs of loss, and they are presented in due time, but are defective, such defects may be waived by the failure of the insurer to object to them on any ground within a reasonable time, or by putting his refusal to pay on any other specified ground than defect in proofs. INSURANCE CONDITIONS- PROOF OF LOSS — WAIVER. Where a fire in surance policy requires preliminary proofs of loss, the mere silence of the insurer, or his failure to specify the non-production of such proof as an objection to the payment of the loss, cannot be construed as a waiver of the presentation of such proof, defective or otherwise. INSURANCE-PROOFS OF LOSS — WAIVER. - - Where a fire insurance policy exacts notice of loss forthwith, and proof of loss as soon thereafter as possible, mere notice of loss is not proof of loss, nor a waiver thereof, though proof of loss "forthwith" may answer also as notice. INSURANCE-PROOF OF LOSS-WAIVER. — Where a fire insurance policy requires that notice of loss must be given forthwith, and proofs of loss as soon thereafter as possible, and it is shown that the insurer received notice of loss, but never received the proofs of loss sent, or knew their contents and defects, if any, it cannot be contended that such proof or defects are waived. INSURANCE-PROOF OF LOSS-WAIVER. — Under a fire insurance policy requiring proofs of loss rendered at the residence of the insurer, the deposit in the post-office of a written statement of loss, sworn to and addressed to the insurer, but never received by him, is not a delivery of such proof so as to fulfill the requirements of the policy and constitute a waiver of such proofs. Tompkins, London, and Troy, and Pettus and Pettus, for the appellant. Jones and Falkner, contra. SOMERVILLE, J. The policy of insurance sued on, among other conditions, requires three important steps to be taken by the assured in the event of a loss by fire: 1. He must "forthwith give notice of said loss to the company in the city of Selma "; 2. "As soon after as possible [he must] render a particular account of such loss, signed and sworn to by him," the assured, stating the origin of the fire, what other insurance he has, if any, his interest in the property, its value, and by whom and for what purpose it was occupied; 3. He must produce the certificate of the nearest disinterested magistrate that such officer has examined the circumstances of the loss, and believes that it originated without fraud, and amounted to a specified sum. These three requirements, omitting for the present all mention of others, viz.: 1. Notice of loss; 2. Sworn proof of loss; 3. Certificate of loss by a magistrate,have uniformly been held by the courts to be conditions precedent in policies of insurance like the present one, and satisfactory evidence of compliance with them in proper time has been held to be an essential prerequisite to the right of recovery by the assured, unless such compliance is waived by the insurer: Wellcome v. People's Eq. Mut. Fire Ins. Co., 2 Gray, 480; May on Insurance, secs. 460, 466; Fire Ins. Co. v. Felrath, 77 Ala. 194; 54 Am. Rep. 58. "Forthwith," in all such policies, means without unnecessary delay, or with reasonable diligence, under the circumstances of the particular case: St. Louis Ins. Co. v. Kyle, 11 Mo. 278; 49 Am. Dec. 74. It has been held in one case that delay of eleven days, and in another of eighteen days, in giving notice of loss, is not a compliance with such a requirement, in the absence of excusatory facts explaining the delay: Trask v. State Fire and Marine Ins. Co., 29 Pa. St. 198; 72 Am. Dec. 622; Edwards v. Lycoming Ins. Co., 75 Pa. St. 380. Where the fire occurred on the 15th, and the plaintiffs, hearing of it on the 18th, gave notice by mail on the 23d, this was held to be a sufficient compliance with a condition requiring notice to be given "forthwith": New York Cent. Ins. Co. v. National Ins. Co., 20 Barb. 468. And notice given on the morning after the fire was held sufficient in Hovey v. American Mut. Ins. Co., 2 Duer, 554. The settled rule in all cases, however, is to con strue such requirements liberally in favor of the assured, and strictly against the insurer: Piedmont & A. Ins. Co. v. Young, 58 Ala. 476; 29 Am. Rep. 770; Alabama Gold Life Ins. Co. v. Johnston, 80 Ala. 467; 60 Am. Rep. 112. It has been held by this and other courts that where preliminary proofs of loss are presented to the insurer in due time, and they are defective in any particular, these defects may be waived in either of two modes: 1. By a failure of the insurer to object to them on any ground within a reasonable time after receipt,-in other words, by undue length of silence after presentation; or 2. By putting their refusal to pay on any other specified ground than such defect of proof. The reason is, that fair dealing entitles the assured to be apprised of such defect, so that he may have an opportunity to remedy it before it is too late: Fire Ins. Co. v. Felrath, 77 Ala. 194; 54 Am. Rep. 58; Firemen's Ins. Co. v. Crandall, 33 Ala. 9; Insurance Co. v. McDowell, 50 Ill. 120; 99 Am. Dec. 497; St. Louis Ins. Co. v. Kyle, 49 Id. 74; Commonwealth Ins. Co. v. Allen, 80 Ala. 571. So there are cases decided by this and other courts which hold, and properly so we think, that an entire failure to make any formal proof of loss may sometimes be excused, on the principle of waiver or estoppel in pais. In Martin v. Fishing Ins. Co., 20 Pick. 389, 32 Am. Dec. 220, no evidence was offered of any preliminary proofs before bringing the action, but only of an abandonment not accepted, and a demand of payment of the loss. The insurer refused to pay the loss, solely on account of the unseaworthiness of the vessel, and in all their communications with the plaintiff made no objection to the want of proof. The court held that the refusal to pay on the ground specified was a fact from which the jury were authorized to infer a waiver of the proof of loss. On like principle, a waiver of preliminary proofs has been inferred from a distinct refusal of the company to pay, because the assured had taken other insurance without notice, and "had in other ways acted unfairly": Charleston Ins. Co. v. Neve, 2 McMull. 237. And again, on the ground that no valid contract of insurance had ever been entered into, because incomplete at the time of the loss, no objection being made to the want of such proofs: Tayloe v. Merchants' Ins. Co., 9 How. 390; Home Ins. Co. v. Adler, 71 Ala. 518. So where the insurance company subjected the assured to a personal examination under oath, which statement he subscribed, as requir by the terms of the policy, and no demand was made for formal proofs, it was held that, upon this state of facts, the jury were authorized to find a waiver of such proofs: Badger v. Phænix Ins. Co., 49 Wis. 400. The payment by the insurer of a part of the sum agreed to be paid by the policy in case of loss has also been held a waiver of the usual preliminary proofs: Westlake v. St. Lawrence Ins. Co., 14 Barb. 206; so, the offer to pay a specified sum, accompanied by a denial of liability for some of the articles as not covered by the policy, without demand of such proofs: Commercial Fire Ins. Co. v. Allen, 80 Ala. 571. We can find no case, however, where the mere silence of the insurer has been construed as a waiver of the presentation of preliminary proofs by the insured, where no such proofs, defective or otherwise, have been presented. The policy itself is the most solemn notification possible of the imperative prerequisite of furnishing such proofs. It is there stipulated that they must be furnished as soon as possible after the fire, and this stipulation is a standing notice of the requirement. It stands to reason that this notice need not be reiterated by the insurer, nor any special attention of the assured called to it, unless the particular circumstances of the case render it necessary to fair and honest dealing between the parties. And the authorities accordingly hold that the mere silence of the underwriter or insurer, or his failure to specify the non-production of such preliminary proofs as an objection to the payment of the loss, is not sufficient evidence to justify a jury in inferring a waiver of the production: Columbian Ins. Co. v. Lawrence, 2 Pet. 25; O'Reilly v. Guardian Ins. Co., 60 N. Y. 169; 19 Am. Rep. 151; Keenan v. Mo. State Mut. Ins. Co., 12 Iowa, 126. A like principle was applied in St. Louis Ins. Co. v. Kyle, 11 Mo. 278, 49 Am. Dec. 74, where there was a failure on the part of the insurer to object to a notice of loss when it was received too late. It was suggested by the court that it was not the duty of the company to make any formal objection to the want of notice, and whether they were silent or made objections on this ground could not alter the rights of the parties. "Such a doctrine would be in fact," it was said, “implying a new contract between the parties, from the mere inaction or silence of one party." See also Patrick v. Farmers' Ins. Co., 43 N. H. 621; 80 Am. Dec. 197. As we have said, the contract exacts, -1. A notice of loss forthwith; and 2. Proofs of loss as soon thereafter as possible. It is manifest that mere notice of loss is not proof of such loss, |