LIVERY BY CARRIER-ACTION FOR MISDELIV- In an action by a shipper against a carrier for the conversion of a car load of lumber by delivering it to a wrong person, the defense that defendant was justified in making the delivery, because the invoice delivered by plaintiff to the person receiving the lumber described the rightfully delivered to such person, is not susdescribed the lumber in the car actually sold to tained, where the evidence shows that the invoice such person, and did not describe the lumber in suit. as the one here appealed from, does not nec-15. CARRIERS (§ 94′′)—CARRIAGE OF GOODS-DEessarily finally determine the rights of the parties to the subject-matter restored. It may or may not do so, depending, of course, upon the judgment or decree of reversal. The decree of restitution itself, aside from the decree of reversal, does not undertake to determine the rights of the parties to the sub-car containing it in connection with another car ject-matter, further than to restore the parties to the condition in which they would have been, but for the erroneous judgment or decree which is reversed. Ex parte Walter Bros., 89 Ala. 237, 7 South. 400; Wright v. Hurt, 92 Ala. 591, 9 South. 386; West v. Hayes, 120 Ala. 98, 23 South. 727, 74 Am. St. Rep. 24; Smith v. Gayle, 58 Ala. 600. See, also, Quan Wo Chung Co. v. Laumeister, 83 Cal. 384, 23 Pac. 320, 17 Am. St. Rep. 264; Haebler v. Myers, 132 N. Y. 363, 30 N. E. 963, 15 L. R. A. 588, 28 Am. St. Rep. 589. The decree of the chancellor is affirmed. [Ed. Note. For other cases, see Carriers, Cent. Dig. § 382; Dec. Dig. § 94.*1 Appeal from Law and Equity Court, Mobile County; Saffold Berney, Judge. Action by the Bay Shore Lumber Company against the Mobile, Jackson & Kansas City Railroad Company. Plaintiff had judgment, and defendant appeals. Affirmed. See, also, 158 Ala. 622, 48 South. 377. DOWDELL, C. J., and SIMPSON and Mc- fendant said: That plaintiff shipped over CLELLAN, JJ., concur. (165 Ala. 610) defendant's line of railroad from some point in the state of Mississippi two car loads of lumber to the city of Mobile, in the state of Alabama, said lumber being loaded on cars of MOBILE, J. & K. C. R. CO. v. BAY SHORE the defendant No. 3212 and No. 242 respective LUMBER CO. (Supreme Court of Alabama. Feb. 10, 1910.) 1. CARRIERS (§ 83*)-CARRIAGE OF GOODS-DELIVERY BY CARRIER TO WRONG PERSON. The delivery of a shipment of lumber to the wrong person, without the production or assignment of the bill of lading renders the carrier liable as for conversion. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 308-315; Dec. Dig. § 83.*] VARYING 2. CUSTOMS AND USAGES (§ 17*) [Ed. Note.-For other cases, see Customs and Usages, Cent. Dig. § 34; Dec. Dig. § 17;* Evidence, Cent. Dig. §§ 1945-1952.J 3. CARRIERS (893*)-NEGLIGENCE (8 5*)-OP ERATION IN GENERAL. Evidence of a custom or usage is never admissible to justify the doing of an act which is negligent in itself, such as a custom of carriers to deliver goods to persons other than the consignee, or to whom the consignee has not authorized the delivery. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 356-362; Dec. Dig. § 93 Negli gence. Cent. Dig. §7; Dec. Dig. § 5.*] 4. ESTOPPEL (§ 112*) — PLEADING-DEFENSESUFFICIENCY OF ALLEGATIONS. In an action by a shipper against a carrier for the conversion of a car load of lumber wrongfully delivered, a plea which seeks to invoke an estoppel by the act of plaintiff in making out an erroneous invoice is insufficient, where it fails to identify the lumber sued for. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. § 302; Dec. Dig. § 112.*] ly, and consigned to plaintiff's company at Mobile; that said cars of lumber were designated one freight waybill. Defendant further says that said lumber had been shipped to Mobile for the purpose of selling and disposing of the same in the market, and that upon the arrival of said cars in Mobile said plaintiff by its agents and servants prepared and delivered to the Lewis Land & Lumber Company, a corporation engaged in the purchase and sale of lumber in the city of Mobile, an invoice or statement in writing, in words and figures as follows: "Mobile, Ala., Nov. 28, '06. "Our No. B. D. Order No. 45-G. Lewis Land & Lumber Co., Mobile, Ala., Dr. То Bay Shore Lumber Co., Manufacturers Yellow Pine Lumber. Cars Nos. 3212 & 242, initial K. C. Shipped to Lewis Land & Lbr. Co. Mobile, Ala. % Munson S. S. Line. 32 pcs 5x12x38 4x52x43 23 49 .6,089 ......2,040 ..8,248 16,548 $579.18 "F. o. b. Mill. Copy'and that upon the demand of the said Lewis Land & Lumber Company, and upon the representation made by it that it had purchased the lumber upon said cars, the same was delivered to the said Lewis Land & Lumber Company. And the defendant further said that the lumber described in said complaint was contained in said cars; and defendant says that in delivering said cars to the Lewis Land & Lumber Company it acted upon the representation of the said Lewis Land & Lumber Company that it had purchased the lumber upon said charge indicated in said invoice or statement in writing as aforesaid, and that in delivering said cars to the Lewis Land & Lumber Company it acted in accordance with its custom of dealing with said plaintiff and said Lewis Land & Lumber Company, both of which said corporations were constantly shipping lumber over its line of railroad from points in the states of Mississippi and Alabama to the city of Mobile; and in accordance with said custom defendant delivered to the Lewis Land & Lumber Company and to plaintiff corporation the various and sundry shipments of lumber made by them without the production of any bill of lading. And defendant further alleges that, when the plaintiff corporation prepared and delivered to the Lewis Land & Lumber Company the invoice or statement in writing hereinabove set out it knew that the defendant railroad company would, in accordance with said custom, which was well known to the plaintiff, deliver said cars of lumber to the Lewis Land & Lumber Company; and defendant further alleges that the negligence of plaintiff in preparing and delivering to the Lewis Land & Lumber Company said invoice or statement in writing, indicating a sale by the plaintiff to the said Lewis Land & Lumber Company of said two cars of lumber, caused the defendant to surrender possession of said two cars of lumber as aforesaid." and to another of defendant's agents, Mr. Drago. In this conversation Mr. White told Mr. Bates that it was not Bates' fault that the car had not been delivered, that he (Bates) had given the proper instructions that the car should be delivered to Hunter, Benn & Co.; but one of the defendant's agents at this time told Bates that the car had been delivered to the Lewis Land & Lumber Company on the 4th or 6th of November, and that Drago told him that the car had been delivered to the Lewis Company as ordered, and not to the Hunter Company. It was undisputed that the car of lumber No. 3212 was delivered to the Lewis Company, to whom it was ordered to be delivered, and that about a week after it was delivered an agent of the Lewis Company telephoned defendant for the delivery of car 242, and that after some controversy it was also delivered to the Lewis Company, and not the Hunter Company, as directed by plaintiff, and delivered without the production of the bill of lading or any order from plaintiff, except the invoice furnished the Lewis Company by plaintiff and upon which it had theretofore delivered car 3212. It is undisputed that the defendant delivered the car to the wrong party and to a party who had no claim or right to it, and delivered it without the production or the assignment of the bill of lading. Without more, this, of course, would render defendant liable to plaintiff in action of trover for the car of lumber so wrongfully McIntosh & Rich, for appellant. Inge & delivered. This court, in the case of L. & N. Armbrecht, for appellee. R. R. Co. v. Barkhouse, 100 Ala. 544, 13 MAYFIELD, J. Appellee sued the appel- J., said: "A bill of lading does not pass by lant in trover for the conversion of certain delivery, and the possession of it by one lumber or timber which is minutely described other than the consignee, without indorsein the complaint. The facts of the case are ment, will not authorize or justify the carsubstantially as follows: The plaintiff ship-rier in delivering the consignment to such ped two cars of lumber over defendant's road person. Hutchinson on Carriers, § 344; 2 from some point in Mississippi to Mobile, Ala. Am. & Eng. Encyc. of Law, 241. The obligaThese cars in which the lumber was shipped tion to deliver only to the party having title were cars of the defendant railroad compa- to the bill of lading is imposed by law on the Any custom of a ny, and were numbered 3212 and 242, respec- carrier, and is absolute. tively. Upon the arrival of the lumber in particular carrier, or of carriers generally Mobile one Bates, representing plaintiff, call- at a particular place, to make deliveries to ed on one White, who was cashier of the rail- persons merely in possession of the bill of road company and authorized to represent lading, is a bad custom, and cannot be adthe defendant in the matter, and paid the duced in evidence to exempt such carrier or freight on the two cars, and then told White carriers from liability for deliveries to wrong that the two cars were for different parties persons. Trover is the proper action, where to whom plaintiff had contracted to sell the there has been a delivery of property by a lumber, that car 3212 was to go to the Mun- common carrier to a person not entitled to it, son Line Docks for the account of the Lewis by mistake. Such wrongful delivery is a Land & Lumber Company, and that car 242 conversion. Bullard v. Young, 3 Stew. 46; was to be carried to the defendant's dump Ala. & Tenn. River R. R. Co. v. Kidd, 35 to await the order of Hunter, Benn & Co., to Ala. 209." For a custom or usage to vary whom they had contracted to sell the same. the implications of a contract, it must be esLater Bates called at the railroad office to tablished and acted upon generally and suffiknow what had become of car 242, as Hunter, ciently long to raise a presumption of its Benn & Co. had not received it. At this time knowledge, and it can never vary the exBates talked to White, the cashier, and one pressed stipulations of a contract. It is only which is admissible to aid in the interpreta- for this reason the cars were shipped totion of contracts. Unfair and unrighteous gether, and one answered as an idler for the ones the law should not allow to exist, much less to encourage or enforce. Custom or usage is never admissible to justify the doing of an act which is negligent per se, such as a custom of carriers to deliver goods to persons other than the consignee, or to whom the consignee has not directed or authorized the delivery. Barkhouse's Case, supra; Andrew's Case, 99 Ala. 438, 12 South. 432; Anderson v. Whittaker et al., 97 Ala. 690, 11 South. 919; Haas v. Hudmon, 83 Ala. 174, 3 South. 302; Barlow v. Lambert, 28 Ala. 704, 65 Am. Dec. 374; Smith v. Rice, 56 Ala. 417. The defendant attempted to avoid liability by setting up a special defense, as shown by plea No. 2 as amended. (The reporter will set out this plea in the statement of facts.) Demurrers were interposed to this plea, and were overruled, and the trial was had upon it and that of the general issue. It is unnecessary for us to pass upon the sufficiency of this plea, because it was ruled sufficient by the trial court, which ruling was in favor of appellant. If the plea was sufficient, and not subject to the demurrers interposed, and we will so treat it, for reasons before assigned, it is, as was intimated by this court on the former appeal (see 158 Ala. 622, 48 So. 377), on the theory of a plea of estoppel, and not as one setting up a reasonable custom which would justify the delivery to the wrong person. The allegations as to custom were mere inducements to show that plaintiff had directed or ordered defendant to deliver the lumber in question to the Lewis Company, and not to plaintiff, or to the Hunter Company, to whom it had sold the lumber in question, and that, having so ordered defendant to deliver to the Lewis Company, it was now estopped to claim or show a wrongful delivery of the lumber sued for. It was claimed and alleged that the plaintiff so ordered, directed, or caused the wrongful delivery of the lumber sued for by making out and delivering to the Lewis Company an invoice which described both cars, and the lumber sued for, as well as that sold to the Lewis Company. This is the effect, if not the words, of the plea. As was ruled by this court on the former appeal, it was necessary that the pleas should identify the lumber sued for. It is true that the invoice furnished by plaintiff to the Lewis Company did describe both cars; but it did not describe the lumber sued for, and there is no pretense in the evidence that it did so describe the lumber sued for. If the lumber sold to the Lewis Company could be said to be in both cars, it was because it lapped over onto the other car. The lumber or timber in both cars is shown to have been in very long pieces, some of it longer than the car, and other; and it is only in this sense that the lumber sold to the Lewis Company was in car 242. For this reason, it was proper to mention the car in the invoice; but it is not contended or shown that the Lewis Company bought any of the lumber in car 242, for which this suit is brought, but that they only bought that in car 3212, and that they only paid for the freight and switching of this one car, and not for both, and that car 242 was only an idler or trailer, because the lumber in the two cars overlapped. Their letter to plaintiff clearly shows this. The letter is as follows: "The Lewis Land & Lumber Company, Wholesale Lumber and Timber, City Bank & Trust Company Building, Mobile, Ala. Mobile, Ala., 12/1/06. Messrs. Bay Shore Lumber Co., Mobile, Ala.-Gentlemen: Remittance car number 3212. Enclosed herein find our check for $44.66 covering freight and switching on car K. C. 3212 which you ordered to the Munson Line for us. Please accept our thanks for looking after this car for us. Yours very truly, Lewis Land & Lumber Co., J. Howard Smith, Secretary." It was some time after the delivery of the lumber from this car that the delivery was made from car 242, which contained the lumber in question. It indisputably appears that the invoice to the Lewis Company did not describe the lumber in car 242 sued for, either in quantity or quality; but it did accurately describe the lumber in car 3212, which was sold to the Lewis Company, both as to quantity and quality. Hence the defendant wholly failed to establish the material averments of its plea, and all the evidence shows that the wrongful delivery was made on account of defendant's own negligence and wrong, and in violation of its bill of lading, and in violation of expressed explicit instructions of the plaintiff consignee. It cannot be contended that the invoice called for a delivery of the cars, rather than the lumber described therein; and because the lumber described therein might be in two cars, or in one car, would not be an order to deliver other lumber as good, which might be in the cars and which were not described in the invoice or directions to deliver. Under all the evidence, and under every theory of it, the defendant delivered plaintiff's lumber to the wrong party without a bill of lading, and without authority, and contrary to express and specific directions from plaintiff. The verdict and judgment rendered were the only verdicts or judgments that could have been properly rendered under the issues and evidence in this case. The general affirmative charge should have been given for the plaintiff. We find no errors in the record of which they are necessarily without injury to the defendant, appellant. The judgment of the lower court is affirmed. Affirmed. DOWDELL, C. J., and ANDERSON and SAYRE, JJ., concur. (166 Ala. 575) WEATHERLY v. NASHVILLE, C. & ST. L. RY. The imposition by statute or ordinance of certain duties upon railroad companies at public crossings does not exempt them from all other duties which are reasonably necessary to avoid injury at the crossings. [Ed. Note. For other cases, see Railroads, (Supreme Court of Alabama. Dec. 21, 1909. Cent. Dig. §§ 981, 987; Dec. Dig. § 310.*] Rehearing Denied Feb. 26, 1910.) 1. DEATH (§ 23*) — ACTIONS- CONTRIBUTORY NEGLIGENCE OF DECEASED AS DEFENSE. Under Code 1907, § 2486, authorizing a personal representative to maintain an action for damages for negligence causing intestate's death, if intestate could have maintained an action therefor if death had not resulted, contributory negligence by intestate which would have barred an action by him had death not resulted will bar an action for his death by his personal representative. [Ed. Note. For other cases, see Death, Cent. Dig. §§ 25, 26; Dec. Dig. § 23.*] 2. DEATH ($ 58*)-ACTIONS PRESUMPTIONS. The fact that decedent cannot testify as to how the injury happened cannot be considered to raise a presumption in favor of or against his personal representative in an action by him for intestate's death by wrongful act. [Ed. Note.-For other cases, see Death, Dec. Dig. § 58.*] 3. RAILROADS (§ 317*)-ACCIDENTS AT CROSSINGS-NEGLIGENCE-RATE OF SPEED. The running of a train 30 miles an hour over a street crossing at a traveled street, and in excess of the speed limit fixed by ordinance, is ordinary negligence. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1009; Dec. Dig. § 317.*] 4. NEGLIGENCE (§ 56*)-PROXIMATE CAUSE. Defendant's negligence must have proximately contributed to the injury, in that it would not have happened except for such negligence, in order to be actionable. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 69; Dec. Dig. § 56.*] 5. RAILROADS (§ 273%*)-TRESPASSERS-DUTY OF RAILROAD. Except at public crossings, and in a few other places, a railroad company's right of way is its exclusive property, and it only owes to those trespassing thereon the duty not to wantonly or willfully injure them. [Ed. Note. For other cases, see Railroads, Dec. Dig. § 2732.*] 6. RAILROADS (§ 301*)-ACCIDENTS AT CROSSINGS-DUTIES AT CROSSING. While the rights of a railroad company and of the public to use a street are mutual, the former has the right of way at crossings by reason of the nature of the road, but must use reasonable care to avoid injury in view of all the circumstances, and each may rely upon the exercise of due care by the other to avoid injury only to a limited and reasonable extent. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 956; Dec. Dig. § 301.*] 7. RAILROADS (§ 327*)—ACCIDENTS AT CROSSINGS-CONTRIBUTORY NEGLIGENCE-DUTY TO STOP; LOOK, AND LISTEN. Pedestrians at a public street crossing should inform themselves of the proximity of 9. RAILROADS (§ 310*)-ACCIDENTS AT CROSS- NEGLIGENCE- VIOLATION OF STAT INGS UTES. The violation of a railroad company of duties imposed upon it by statute or ordinance as least simple negligence. to running over public crossings constitutes at [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 986; Dec. Dig. § 310.*1 10. RAILROADS (§ 310*)-ACCIDENTS AT CROSSINGS-NEGLIGENCE-LIABILITY. Code 1907, § 5476, making a railroad company liable for all injury to persons or property caused by failure to comply with statutory duties as to crossings and placing the burden upon not make them liable for injuries at crossings them to show performance of such duties, does irrespective of negligence which contributed to the accident. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 981; Dec. Dig. § 310.*] 11. RAILROADS (§ 346*)-ACCIDENTS AT CROSSINGS-NEGLIGENCE-RES IPSA LOQUITUR. The mere injury of a person or property at not of itself make the company liable therefor; a public crossing by a railroad company does the doctrine of res ipsa loquitur not applying. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 119; Dec. Dig. § 346.*] 12. RAILROADS (§ 339*)-ACCIDENTS AT CROSSINGS - NEGLIGENCE VIOLATION OF STATUTORY DUTIES-WANTON NEGLIGENCE. duties imposed upon a railroad company at a While as a rule failure to comply with the public crossing by statute or ordinance constitutes only simple negligence, failure to comply with such duties may be so gross, reckless, and wanton as to amount to wanton negligence. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1100; Dec. Dig. § 339.*] 13. RAILROADS (§ 339*)—ACCIDENTS AT CROSS INGS-NEGLIGENCE-WANTON NEGLIGENCE. A railroad company would be liable for injuries at the crossing, though the injured party negligent after seeing his danger, if the train was also negligent, and its employés were not was run at a high rate of speed, without signals, over an unguarded public crossing in a populous city district, or at a place where the public usually crossed the track in large numbers, which the train employés knew; their conduct amounting to reckless indifference. [Ed. Note. For other cases, see Railroads, Cent. Dig. 88 1085, 1100, 1101; Dec. Dig. 8 339.*] the crossing. The train was running from 25, gence. The other counts declared on wanton to 30 miles an hour with headlights burning, negligence and willful injury. The wrongand the whistle was blown at the signal post, ful act complained of in each count is that but it was not shown with certainty whether bell or whistle signals were given, or brakes defendant ran one of its trains or engines applied, or the speed slacked, between the signal against plaintiff's intestate, thereby killing post and within 20 or 30 feet of the crossing, him. The venue is a public street crossing but at that point the steam was shut off, brakes in the city of Gadsden. The time was 8 applied, and the danger signals given, though the train was not stopped until after passing the o'clock at night, on May 27, 1907. The train place of injury several hundred feet. Intestate alleged to have killed the intestate was a was seen standing by the side of the track just regular daily passenger train, coming into as the danger signals were given. There was a building on either side of the track at the Gadsden at this hour. Each count alleges crossing, and at the time of the accident there that intestate was crossing or attempting to was much travel over it. The street had long cross the defendant's railroad track at a been much used by the public, and the engineer public street crossing in the city of Gadsden in charge had been on that particular run for some time. Held, that the question of whether at the time of the injury. The defendant defendant was guilty of wanton negligence in pleaded the general issue and contributory running over intestate was for the jury. negligence to the first count, and the general issue as to the other counts. After the plaintiff had introduced all his evidence, the de [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1192; Dec. Dig. § 350.*] 15. RAILROADS (§ 350*)-ACCIDENTS AT CROSS-fendant declined to introduce any evidence, INGS-ACTIONS-PROXIMATE CAUSE - QUESTION FOR JURY. Whether defendant's wanton negligence in running its engine at a crossing proximately caused intestate's death was for the jury. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1190; Dec. Dig. § 350.*] 16. RAILROADS (§ 347*)-ACCIDENTS AT CROSS INGS-ACTIONS-EVIDENCE-ADMISSIBILITY. In an action for intestate's death by being struck by defendant's engine at a public street crossing, plaintiff could show the extent and frequency of travel at the crossing at the time of the injury. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1124, 1129; Dec. Dig. § 347.*] 17. WITNESSES (§ 240*)-EXAMINATION-LEADING QUESTIONS. Leading questions were properly excluded. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 837; Dec. Dig. § 240.*] 18. RAILROADS (§ 347*)-ACCIDENTS AT CROSS INGS-ACTIONS-EVIDENCE-ADMISSIBILITY. In an action for intestate's death by being struck by defendant's train at a street crossing, evidence as to whether one standing where intestate was when injured could distinguish defendant's tracks from those of another company running parallel thereto, or whether the lights seemed to make one track look like the other, was not admissible, where it was not shown that intestate was so deceived. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1124; Dec. Dig. § 347.*] Dowdell, C. J., and Simpson, J., dissenting. Appeal from City Court of Gadsden; John H. Disque, Judge. Action by G. W. Weatherly, administrator, against the Nashville, Chattanooga & St. Louis Railway. From a judgment for defendant, plaintiff appeals. Reversed and remanded. Culli & Martin and Howard & Hunt, for appellant. Goodhue & Blackwood, for appellee. and moved the court to exclude that of the plaintiff's, and requested the general affirmative charge in its favor. The court granted the motion, and gave the charge requested, which, of course, resulted in a verdict for defendant, from which plaintiff appeals, here assigning various errors, chief among which are the exclusion of his evidence, and the giving of the charge for defendant. The complaint was unquestionably proven, except as to the allegations of negligence or willful acts of defendant which caused the injury. Therefore the important, if not the sole, question for review is: Did the evidence show, or tend to show, that the intestate's death was proximately caused by any wanton negligence or willful act alleged, or was it the result of, or proximately caused by, any act of simple negligence alleged, to which injury or death intestate's own negligence did not proximately contribute, or was intestate's death, as shown by the evidence, a mere accident, for which no one is civilly liable? The plaintiff cannot, and should not, recover in this action unless the intestate could have recovered for the injury, under the same state of facts, if death had not resulted; that is, if he was guilty of such contributory negligence as would have barred his own action for the injury had death not resulted, then that same negligence will bar plaintiff's action when death resulted. Code, § 2486 (27). The fact that intestate cannot tell his story as to how the injury happened cannot be considered to raise a presumption in plaintiff's favor, or against the defendant. The case must be tried as if intestate were present and declined to testify, except that no presumption must be indulged against plaintiff for such failure to testify. As to the first count, the evidence we think MAYFIELD, J. Appellant sued to recover clearly shows simple negligence in running damages for the wrongful death of his in- the train 30 miles per hour and in excess of testate. The action is under our familiar the speed fixed by the municipal ordinance of homicide statute. The complaint contained the city of Gadsden. It was also open to the six counts. Count 1 relied on simple negli- | jury to infer from the evidence that there |