The opinion
On Rehearing.
The conditions at the crossing where the collision between the defendant’s locomotive and the plaintiff’s automobile took place are peculiar and unusual. The defendant maintained its depot for receiving and discharging passengers and freight in a deep cut, through which the defendant’s trains approached the road crossing, and the public road approached the defendant’s track through a like cut. The embankments of these cuts obscured the view of the highway from the trainmen on one hand and the traveler’s view of the tracks on the other, forming a trap, or blind, through which 'the traveler on the highway, unless the trainmen in charge of and operating trains over such crossings exercised a high degree of care, was, in effect, invited to his destruction. Can it be declared as a rqatter of law that to operate a train over such crossings at such a rate of speed that it is impossible to avoid collision with a traveler in the exercise of his right to use such crossing is not negligence? The authorities cited by appellant do not so hold. They relate to ordinary road crossings, where the view of the trainmen and the traveler are not so obstructed and they have no application to the facts in this case.
On the principle announced in E. T., V. & G. R. R. Co. v. Deaver, 79 Ala. 221 , under the evidence in this ease, the question of negligence was one for the jury.
There is no evidence in this case that plaintiff made any effort to cross the tracks after discovering the train, but the evidence is to the contrary- — that he undertook to stop the automobile, and in his efforts to stop it lost control of it, and it rolled upon the defendant’s track. Under this evidence, there is no room for the application of the doctrine declared in Weaver v. A. G. S. R. R. Co., 200 Ala. 432 , 76 South, 366 , and M. & C. R. R. Co. v. Martin, 117 Ala. 367 , 23 South. 231 :
“That one who discovers the imminent approach of a train moving at a dangerous rate of speed, and, measuring the distance to the crossing, attempts to beat the passage of the train and fails to his hurt, cannot recover for previous simple negligence of the railroad company.”
[15] The defendant’s plea of contributory negligence avers “that the plaintiff did not stop, and look, and listen, before going upon, or attempting to cross, said tracks,” and imposed on the defendant the burden of showing that the plaintiff voluntarily drove the' car upon the railroad track or attempted to cross the track. Some of the evidence at least tends to show 'that the plaintiff made no such attempt, but that in his efforts to stop the automobile lost control of it and it rolled upon the track.
It cannot be doubted that when the driver of an automobile loses control of his machine that it is likely to become as dangerous as when the driver of -a team loses control of such team, and makes applicable the exception to the general rule adverted to in Atlantic Coast Line Railroad Co. v. Jones, quoted in the original opinion.
Application overruled.