The opinion
On Rehearing.
BROWN, Justice.
Appellee strenuously insists that the statement in the opinion that
“There was evidence tending to show that said crossing was put in, [in] 1933, by the defendant at the request of the lumber company, and that the engineer had knowledge of its existence,” is not, justified by any evidence in the case and should be stricken from the opinion.
By interrogatory No. 2 propounded to the defendant by plaintiff under the statute, the, plaintiff called for the following facts:
“a. By whom was the crossing over your railroad tracks from North Court Street to the mill and plant of said Bradley Lumber Company constructed or prepared ?” “b. Was not said crossing constructed or prepared by you under contract or agreement with the Bradley Lumber Company?” The answer to said interrogatory: “This private crossing was installed with the consent of defendant
at the request of Mr. Bradley, of Bradley .Lumber Company, to serve his lumber company,
but Bradley Lumber Company was located on defendant’s property, which the Lumber Company leased from the defendant.” (Italics supplied.)
The lease, a copy of which was attached to the answers, was entered into in 1933.
Though it must be conceded the defendant’s answer is evasive, yet in connection with the lease it inferentially supports the statement complained of. If said crossing' had been installed by persons, other than by the defendant’s agents or servants, it would have no doubt so stated. The familiarity of the engineer with the crossing was expressly stated in the answers.
Although the court, when it allowed the filing of count 12, had “granted” the defendant’s motion to exclude the plaintiff’s evidence, yet, the proceedings were in fieri, and no doubt, if the court had been of opinion that the count was not subject to the demurrer, and that the evidence tended to support said count, the order on the motion to exclude would have been reversed and the case submitted to the jury.
This reference in the opinion, as clearly appears, was not to strengthen the ruling here on the demurrer, but to show that the ruling of the circuit court was not error without injury.
To state the proposition in other words, if evidence tending to support count 12 had been wholly absent, the ruling on the demurrer to said count, though error, would have been pronounced error without injury.
The holding in the instant case is not in conflict with Atlantic Coast Line R. Co. v. Carter, 214 Ala. 252 , 107 So. 218, 219 . In that case it was observed: “The pivotal question, then, is whether there rested up
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on defendant’s engineer the duty to keep a lookout for persons using the crossing.
That duty zuas not imposed by reason of any inclusive contiguity of village, town, or city, as in the Glass Case
[(Glass v. R. Co.), 94 Ala. 581 , 10 So. 215 ].
There was no such
contiguity." Atlantic Coast Line R. Co. v. Carter, supra. (Italics supplied.)
Central of Georgia Ry. Co. v. Pope, 221 Ala. 145 , 127 So. 835 , was differentiated from the Carter Case by the “inclusive contiguity” of the town of Midway. See 221 Ala. 145 , 127 So. 835 , sttpra.
Section 9952, Code 1923, is a “regulation of public safety” enacted by the Legislature in the exercise of the state’s police power, and is applicable to all persons falling within the scope of its provisions including licensees.
The application for rehearing is overruled.
Overruled.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.