equipment of the engine or its handling. In the absence of evidence as to what distance a properly equipped and skillfully managed engine, under similar atmospheric conditions, would throw sparks, it is obvious that in order for the jury to conclude, from the fact that the cotton was located 50 feet away from the track when destroyed, there is evidence of negligence, they must indulge a presumption of negligence, or base their conclusion upon their own judgment, experience, or knowledge. Confessedly, the defendant is not answerable in damages for the reasonable exercise of a right. Being authorized by law to operate its locomotive engines by steam, which of necessity must be generated by the use of fire, and it being impossible to construct them so as to be successfully operated without emitting sparks or burning cinders, its liability arises only when it is shown that this right was exercised negligently or maliciously. Courts cannot presume the wrongful or negligent exercise by it of the lawful right, but affirmative proof of some fact tending to establish the wrongful or negligent exercise of it by the defendant must be adduced. 8 Am. & Eng. Enc. Law, p. 11, and note 1. Nor can jurors be permitted to consult their own judgment, experience, or knowledge for the purpose of supplying a deficiency in the proof. In the exercise of their judgment, experience, or knowledge, they must be confined to the weight, credibility, and sufficiency of the evidence offered. Their province is "to determine the facts in the case from testimony given by witnesses, and not from their own judgment or experience or knowledge." Burrows v. Transportation Co. (Mich.) 64 N. W. 501, 29 L. R. A. 468. Nor can they take judicial cognizance of the fact that sparks may be borne a given distance by the wind. Hinds v. Barton, 25 N. Y. 547. In the case of Musselwhite v. Receivers, 4 Hughes, 166, Fed. Cas. No. 9,972, the distance was 40 yards; and the court directed a verdict for the defendant, saying: The trains in this case were running lawfully over the company's property. Running thus, they are not responsible for fires arising from sparks proceeding from their own engines, unless it is proved that the emission of the sparks was due to negligence on the part of the defendants, either in using engines improperly equipped and furnished, or in using properly furnished engines in some negligent manner." In Hagan v. Railroad Co., 86 Mich. 615, 49 N. W. 509, the building destroyed was 160 feet from the track. The opinion expressly points out the evidence tending to prove actual negligence, and the decision is made to rest upon that point, and not upon the distance. In Railroad Co. v. Lacey. 89 Pa. St. 458, the distance was 90 feet from the railroad, and yet the court justified the submission of the case to the jury upon the ground that the evidence showed the emission of unusually large cinders by the locomotive. To the same effect is Sheldon v. Railroad Co., 14 N. Y. 218, where the distance

was 672 feet; Huyett v. Railroad Co., 23 Pa. St. 373, where the distance shown was 77 feet; Missouri Pac. Ry. Co. v. Texas & P. Ry. Co. (C. C.) 41 Fed. 917, the distance being from 100 to 150 feet; Gumbel v. Railroad Co., 48 La. Ann. 1180, 20 South. 703, the distance shown to be more than 40 feet, though how much further is not stated; Railroad Co. v. McClelland, 42 Ill. 355, the distance proven to be 100 feet. In Hull v. Railroad Co., 14 Cal. 387, while the distance is not shown in the statement of facts, the court said, "There was proof to show that this result was not probable from the ordinary working of the engine," and sustained the ruling of the lower court in submitting the question of negligence vel non to the jury for this reason. Many other cases can be found where the distance between the property destroyed and the track was greater than here, yet in none of them is it intimated by the court that mere proof of this fact was evidence of negligence in fact. Nor can the expression in the case of Railroad Co. v. Malone, 109 Ala. 516, 20 South. 36, that "we are of opinion that it can be laid down as a sound proposition of law, in no wise dependent upon the experience and observation of jurors, as distinguished from common knowledge, that, if fire is originated by the falling of sparks from an engine at a distance of sixty-three feet, it is the result of negligence, arising either from improper man: agement of the engine or defective appliances," when construed in connection with the evidence in the cause, be said to so hold; for the justice delivering the opinion expressly says in the next succeeding sentence that "certainly the testimony of defendant's witnesses in this case as to the effect of suitable spark arresters upon sparks escaping from it, and a proper handling of the engine, admit of no other conclusion." The testimony here referred to was undisputed "that it was impossible for engines of that construction and same appliances to set fire to anything along its [defendant's] track." If this was true, and the fire did originate from sparks emitted from an engine, then, of necessity, there must have been some defect in the equipment of the engine, or a negligent operation of it. That case is clearly distinguishable from the one under consideration. In that case there was evidence of "an unusual and large rush of sparks from the engine," and, as we have above pointed out, that it was impossible for engines properly equipped and handled to emit sparks which would set fire to property along the track. No such evidence was introduced in this case. Had there been, in view of the evidence offered by the defendant, the question of actual negligence vel non would have been a question of fact for the jury. The first above quotation from Railroad Co. v. Malone, construed properly, is not at variance with the principles announced in Railroad Co. v. Reese, supra, which is the almost universal rule in England and this country, and does not go to the extent of holding the presumption, which we have

shown cannot be accorded the effect of evidence, to establish actual negligence, but simply indulged by the courts for the sole purpose of requiring the company to explain and show that it has performed its duty with respect to the equipment and operation of its locomotives, is a conclusive one, incapable of rebuttal. Manifestly, this is true when we take into consideration that no man can say to what precise distance a spark may be driven by the wind and kept alive by the atmospheric conditions prevailing at the time of its emission, and also the fact, which is common knowledge, and proven undisputedly in this case, that fire will escape from the best equipped and most prudently operated locomotives in sufficient quantities to ignite combustible material along the track. Railroad Co. v. Miller, 109 Ala. 506, 19 South. 989. Again,

it may be said that the plaintiff's evidence shows that the engine was emitting a great many sparks. But it was not shown that this was unusual, or that a properly equipped and prudently conducted engine would not emit quite as many as this one did, loaded as this one was, going at the same rate of speed, upon a similar grade, and burning the same kind of fuel. Indeed, the witnesses for the plaintiff say that they noticed nothing unusual about the engine or its operation, except its speed, and the engineer operating the engine testified that it was emitting no more sparks than the usual amount when passing the point where the cotton was located. "Proof that the fire occurred while the engine was running at rate of speed greater than that allowed by law does not of itself establish. the liability of the company." 3 Wood, R. R. p. 1603. This being so, obviously, when the rate of speed was not regulated by any statute, as in this case, the rapidity with which the train was traveling cannot have the effect of tending to prove negligence in the construction, equipment, or operation of the engine. While the evidence introduced by the plaintiff was competent for the purpose of proving the communication of fire by sparks emitted by the engine, yet it does not tend in the remotest degree to prove negli gence in fact, which the plaintiff is bound to do, after the shifting of the burden upon it by the proof made by the defendant of due care. See, also, Searles v. Railway Co., 101 N. Y. 661, 5 N. E. 66; Grant v. Railroad Co., 133 N. Y. 657, 31 N. E. 220; Flinn v. Railroad Co., 142 N. Y. 11, 36 N. E. 1046; Railway Co. v. Jackson, 18 Eng. Ruling Cas. 677.

The remaining question which we will discuss is the one involving the doctrine of contributory negligence, invoked against the plaintiff in placing its cotton upon its premises so near the track of the defendant's road as that, in case the agents or servants of the defendant are negligent in the management of the locomotive, or in case there is negligence in the construction of the engine, the cotton may be destroyed by fire caused by sparks emitted from the engine. Where con

tributory negligence is pleaded, it is a plea in confession and avoidance, which admits negligence on the part of the defendant, but seeks to avoid liability therefor by alleging that the plaintiff was guilty of negligence which contributed to his injury. 5 Enc. Pl. & Prac. 11. "Assuming as a postulate the negligence of a defendant as a proximate cause of an injury, then the essential elements of contributory negligence on the part of a person injured are (1) a failure on his part, or the part of some person with whose negligence he is chargeable, to exercise ordinary care to avoid injury; and (2) a proximate connection between such failure to exercise ordinary care, and the injury, so direct and immediate that but for such want of ordinary care the injury would not have occurred. That is, the negligence of the defendant and the negligence of the plaintiff must have been so inextricably mingled together, jointly and in combination causing the injury, that it cannot be said that the injury would have happened, had the plaintiff or person injured been free from fault at the time of the injury. But plaintiff's act or omission when only a remote cause or a mere antecedent occasion or condition of the injury is not contributory negligence." 4 Am. & Eng. Enc. Law, 18, and notes. The only limitation upon the right of enjoyment of one's property is to do so in such manner as not to injure that of another. "Sic utere tuo ut alienum non lædas." This is the sum and substance of his whole duty. In placing his cotton upon his own premises, the plaintiff was in the exercise of a lawful right, and no possible injury could come from that act to others. He cannot be required, in locating it, to anticipate the negligence of the defendant. On the contrary, he would have the right to presume that the defendant would use properly equip ped locomotives, and that its agents or servants would operate them in a careful manner. It is true the plaintiff is chargeable with the knowledge that properly constructed and equipped engines, carefully handled, when in operation, emit sparks. And should he place his property within the area within which sparks or live cinders may fall from a properly equipped engine, carefully handled, and it is destroyed by fire caused by sparks so emitted, it is his loss. But this loss must be attributed to the fact that the railroad company has been guilty of no negligence, and cannot be made to rest upon the doctrine of contributory negligence. The fact that the area within which sparks or live cinders may fall from a properly equipped engine, carefully handled, is incapable of definite ascertainment, does not and cannot affect the principle. The area within which they are likely to fall and ignite inflammable substances depends upon the atmospheric conditions, the velocity of the wind, the speed of the engine at the time they are emitted, and many other conditions. However, the railroad company, while operating its properly equipped en

gines in a careful manner, is not responsible for results flowing from the action of any of these conditions upon the sparks or hot cinders emitted by them. The principles involved in the question under consideration are very clearly stated in the case of Railroad Co. v. Hendrickson, 80 Pa. St. 182. It is there said: "The defendants rested their case on the condition of the roof of the barn and the dry weather. The substance of the defendants' points was that, if the condition of the barn was such as to render it more liable to take fire than if it had a secure and safe roof, the plaintiff was guilty of contributory negligence in suffering it to be in that condition. This is clearly unsound, and, if sustained, would require the owner of property lying along a railroad to keep it in a condition to be always safe from sparks or fire thrown from the passing engines. It would deprive the owner of the enjoyment of his property in the way most suited to himself. He could not put his hay into stacks or ricks, or suffer straw to lie around his barn for his cattle to feed or rest upon. He must keep his houses, outhouses, stables, and barns under the bestknown safe roofs, or insure them against the negligence of the company. An owner of property near to a railroad must run all the risk of a proper and careful use of the road, for this is the company's right. When the railroad company uses the most approved spark arresters, and the proper care and vigilance in the running of its engines, and the landowner's barn or hayrick or meadow takes fire from the sparks thrown out, he has no remedy. It is his own risk if he builds too near to the railroad, or erects his stacks or scatters his straw where they may be consumed by fire caused by no negligence. But when actual negligence is proved, and the loss arises from it, the mere condition of his property is no defense to the company.

The conclusion from the cases is very clear that a plaintiff is not responsible for the mere condition of his premises lying along a railroad, but, in order to be held for contributory negligence, must have done some act or omitted some duty which is the proximate cause of his injury, concurring with the negligence of the company." The placing of the cotton in the place where it was when destroyed cannot be said to be the proximate cause of its destruction, but a mere condition. If destroyed by the negligent act of the defendant, this was the direct and proximate cause. We are aware that in some jurisdictions the doctrine of contributory negligence has been recognized and enforced in this class of cases. But the great weight of authority in this country and in England is decidedly the other way. Upon principle, we do not think it has any application to this sort of a case. 8 Am. & Eng. Enc. Law, 16, and authorities cited in note 1; Shear. & R. Neg. § 679, and note; note on page 74 of 38 Am. Dec. (Burroughs v. Railroad Co.). Reversed and remanded.

(125 Ala. 297)

SOUTHERN RY. CO. v. BRYAN. (Supreme Court of Alabama. Dec. 20, 1899.) MASTER AND SERVANT-COLLISION OF TRAINS AT CROSSING-ENGINEER'S CONTRIBUTORY NEGLIGENCE.

Code, § 3441, provides that, where the tracks of two railroads cross each other, engineers and conductors must stop their trains within 100 feet of the crossing, and not proceed until they know the way to be clear. Plaintiff's intestate, an engineer, brought his train into collision with that of defendant at a crossing, and was thereby killed. The night was dark; defendant's engine had no headlight, but a lantern instead; and the evidence was conflicting as to whether either train stopped within 100 feet of the crossing. Held, that plaintiff's intestate, by the exercise of extraor dinary care, which the statute imposed on him, might have ascertained whether the track was clear, and, having failed to do so, was guilty of negligence contributory to his own death, and hence plaintiff could not recover therefor.

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by Pearl O. Bryan, administratrix of the estate of Charles M. Bryan, deceased, against the Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This action was brought for $30,000 damages for the killing of the plaintiff's intestate, which was alleged to have been caused by the negligence of the railway company. The complaint contained 14 counts. The plaintiff did not insist upon but the first, second, and third counts, and it is only necessary to set out these three counts in detail; the court having given the general affirmative charge in favor of the defendant upon each of the other counts of the complaint. These three counts were as follows:

"(1) The plaintiff claims of the defendant thirty thousand dollars, as damages, for that heretofore, to wit, on the 7th day of March, 1897, the defendant was a body corporate, and, for the carriage of freight and passengers, was operating a railroad, running from the city of Birmingham, Alabama, to the city of Columbus, Mississippi, the line of said road running through a suburb of Birmingham commonly called 'North Birmingham,' and on said 7th day of March, 1897, the Louisville & Nashville Railroad Company was also, for the carriage of freight and passengers, operating a railroad in said county, commonly known as the 'Birmingham Mineral Railroad,' which also passes through said suburb, North Birmingham, and crosses the defendant's railroad at or near said suburb, the crossing being known as the 'North Birmingham Crossing.' And the plaintiff avers that on said 7th day of March, 1897, her intestate was an engineer, in the service or employment of said Louisville & Nashville Railroad Company, and as such engineer had charge of an engine to which there was attached several cars, and was running said engine and cars

on said Birmingham Mineral Railroad, and over and across defendant's said railroad at said North Birmingham crossing, and just as the engine, which plaintiff's intestate was running, got upon said crossing, one of defendant's trains, consisting of an engine and several cars, came along on defendant's said railroad towards Birmingham and ran into and collided with the engine which was being operated by plaintiff's intestate, wounding and scalding plaintiff's intestate, and inflicting several injuries upon him, from which he died within a few hours. And the plaintiff avers that the death of her intestate was caused by the negligence of defendant's employés, who were operating defendant's said train, in the running and management of said train, to plaintiff's damage thirty thousand dollars, as aforesaid, hence this suit.

"(2) The plaintiff claims of the defendant, thirty thousand dollars as damages for that heretofore, to wit, on the 7th day of March, 1897, the defendant was a body corporate, and for the carriage of freight and passengers was operating a railroad running from the city of Birmingham, Alabama, to the city of Columbus, Mississippi, the line of said road running through a suburb of Birmingham commonly called 'North Birmingham,' and on the 7th day of March, 1897, the Louisville & Nashville Railroad Company was, also, for the carriage of freight and passengers, operating a railroad in said county, commonly known as the 'Birmingham Mineral Railroad,' which also passes through said suburb, North Birmingham, and crosses the defendant's railroad at or near said suburb, the crossing being known as the 'North Birmingham Crossing.' And the plaintiff avers that on said 7th day of March, 1897, her intestate was an engineer, in the service of the said Louisville & Nashville Railroad Company, and as such engineer had charge of an engine to which cars were attached, and was running said engine and cars on said Birmingham Mineral Railroad, and over which and across defendant's said railroad at said North Birmingham crossing, and just as the engine which plaintiff's intestate was running got upon said crossing, one of defendant's trains, consisting of an engine and several cars, came along on defendant's said railroad towards Birmingham, and ran into and collided with the engine which was being operated by plaintiff's intestate, wounding and scalding plaintiff's intestate, and inflicting several injuries upon him, from which he died within a few hours. And plaintiff avers that the death of intestate was caused by the negligence of F. W. Mosby, who was operating the engine on defendant's said train, the said engineer's negligence consisting of this: That he failed to bring said train to a full stop within one hundred feet of said crossing, but suffered said train to run on without stopping until it ran into and collided with the train upon which plaintiff's intestate was riding, and inflicted said injuries upon plaintiff's intestate from which he died, as aforesaid, to plain

tiff's damage, thirty thousand dollars, as aforesaid, hence this suit."

The third count was the same as the second count so far as the prefatory allegations were concerned, and the averments of negligence contained in said third count were as follows: "And plaintiff avers that the death of her intestate was caused by the negligence of the defendant's employés in charge of said train, in failing to have a sufficient headlight on the forward end of said train; and a failure to have a sufficient headlight prevented said engineer from seeing a sufficient distance ahead of the said train to enable him to discover the said Louisville & Nashville train within time to stop defendant's train before | running into and colliding with the engine. which plaintiff's intestate was operating; and the absence of such sufficient headlight caused defendant's engineer to run said train along until it collided with the engine which the plaintiff's intestate was operating, and inflicted said injuries upon plaintiff's intestate from which he died, as aforesaid, to plaintiff's damage thirty thousand dollars, as aforesaid, hence this suit."

The defendant demurred to the first count of the complaint upon the ground that the allegations of negligence therein were too general, and said count did not allege with sufficient certainty the negligence complained of. This demurrer was overruled, to which ruling the defendant excepted. The defendant then pleaded the general issue, and by pleas of contributory negligence set up in effect that the plaintiff's intestate, who was an engineer in charge of an engine on the Louisville & Nashville Railroad, was himself guilty of contributory negligence, in failing to stop his engine within 100 feet of the crossing, and in proceeding over the crossing without knowing that the way was clear, as required by the statute. The cause was tried upon issue joined upon these pleas.

It was shown by the evidence that the injury resulting in the death of plaintiff's intestate was caused by a collision between a train on the defendant's railroad and an engine and caboose on the Birmingham Mineral Division of the Louisville & Nashville road at a crossing of the two railroads in North Birmingham, Ala. It was further shown that the Birmingham Mineral Branch of the Louisville & Nashville Railroad extended from Boyle's station on the north to Bessemer on the south, and crossed at a right angle in North Birmingham the track of the Southern Railway, which ran in an easterly direc tion from Columbus, Miss., to Birmingham. The Louisville & Nashville engine had attached to it, only a caboose. The headlight was burning on the engine and in the rear, it being a switch engine; the plaintiff's intestate was the engineer upon this engine. The train on the Southern Railway was running as an extra train, and consisted of an engine and from 9 to 12 cars, including the caboose. The collision occurred at about 2 o'clock in the morning. The other facts of

the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the defendant requested the court to give to the jury many written charges, and separate ly excepted to the court's refusal to give each of them as asked; among these charges was the general affirmative charge in its behalf.

There were verdict and judgment for the plaintiff, assessing his damages at $8,000. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Smith & Weatherley, for appellant. Lane & White, for appellee.

HARALSON, J. Section 3441 of the Code provides: "When the tracks of two railroads cross each other, engineers and conductors must cause the trains of which they are in charge, to come to a full stop within one hundred feet of such crossing, and not proceed until they know the way to be clear; the train on the railroad having the older right of way being entitled to cross first."

This statute, as it appeared in the Code of 1867 (section 1403), required these officers to come to a full stop within 50 feet of the place of crossing, and then to move forward slowly, the train of the elder road to have the privilege of crossing first. By the succeeding section (1404), it was provided that if these officers failed to comply with the requirements of the preceding section (1403) they should be deemed guilty of a misdemeanor, punishable on conviction by a fine of not less than $500 nor more than $1,000, and be imprisoned in the county jail not more than 12 months, at the discretion of the jury trying the cause. These two sections were carried substantially into the Code of 1876, as sections 1702 and 4257. When carried into the Code of 1886 these sections appear as sections 1145 and 4108, changed to their present form, the first prescribing 100 feet instead of 50 as the limit for stopping, and not to proceed until they (the engineer and conductor) know the way to be clear; the latter imposing fine and imprisonment in county jail or hard labor for the county,-one or both, at the discretion of the jury,-and, as thus modified, they appear in the Code of 1896, as sections 3441 and 5371.

We have several times construed said section 3441. Each train, it is plain, must come to a full stop within 100 feet of the crossing, before attempting to cross. It must not only stop absolutely, but "not proceed until they [the engineer and conductor] know the way to be clear." The duty of ascertaining that the way is clear before proceeding, is as obligatory as the duty to come to a full stop. The mere stopping would not answer the requirements of the statute, passed to prevent collisions, if the latter requirement were ig nored. The stopping and taking in the situation before crossing is positively enjoined,

which the employés in charge cannot avoid, without being guilty of the most culpable negligence. But these requirements are not enough. Without more, the statute would be lacking in completeness for the purposes intended. To stop anywhere within the 100feet limit, even so close up to the crossing as just to admit of the passage of another train without liability to damage, would answer the first requirement of the statute. When two trains stop within the limit, if the law did not prescribe which shall have the prior right of way, there might arise contention between the two as to that right, and damage, which the statute would render impossible, if its mandates are observed, might occur. To obviate this trouble, the statute wisely prescribed, that the train having the older right of way is entitled to cross first. Railroad Co. v. Jacobs, 92 Ala. 187, 9 South. 320, 12 L. R. A. 830. But, this latter provi sion is not to be construed into a license to the older company, itself in the exercise of this prior right to cross, to be negligent in any particular. Although the presumption may be indulged by it, that the other company will not violate the law, in proceeding contrary to the provisions of the statute, still, if the circumstances indicate that the other train will not stop but will proceed, the older train must stand still until the disobedient and negligent train has passed beyond the crossing, and left the track clear for it to proceed. It would not do, under such circumstances, for the road having the older right of way, itself to be negligent, and thereby cause a collision, and afterwards, seek exemption from liability to damages for injuries inflicted, by comparing its own with the other train's negligence, and attempt to set off the one against the other. Each train may reasonably indulge the presumption, that the other will comply with the mandates of the statute, but this presumption will not protect either from liability for want of care in proceeding, when it becomes apparent, or reasonably so, that the other train is negligent and disobedient. Railroad Co. v. Jacobs, 101 Ala. 149, 13 South. 408; 3 Elliott, R. R. § 1132; 3 Rap. & M. Ry. Dig. 417, § 80.

It is a matter of dispute and conflict in the evidence, whether or not the Louisville & Nashville train stopped within a hundred feet of the crossing, and whether or not the defendant's train stopped within that limit; the contention of each party being, that the other train did not stop. The evidence for the plaintiff is full and clear that the Louisville & Nashville did stop,-which the defendant's evidence rebuts,-and that for the defendant, that its train stopped, and there is no conflict in this fact, except that found in the evidence of one Capers, the only witness introduced by plaintiff to show that defendant's train did not stop, which evidence had tendencies to show that fact, so that the question as to whether either or both of said trains stopped or not, is one of disputed fact, proper for the determination