poses for which it was suitable and intended to be used, and for her own benefit during her life, and that the remainder, if any, at her death should go to his son. To sell this property 562 for the purposes sought in this bill, or to require the life tenant to give security for its preservation and delivery, would clearly defeat the intention of the testator, rather than promote it. The bill was unquestionably subject to demurrer interposed, and, complainant declining to amend, no other course was open but to dismiss it; and if any injury resulted from dismissing his bill, it was his own fault. The decree of the lower court is affirmed. Dowdell, C. J., and Simpson and McClellan, JJ., concur. Whether a Gift of Personal Property for a Lifetime, With a Gift Over, is absolute or otherwise depends upon the nature of the property, as to its being perishable, or merely of articles which may depreciate by using, and also upon other circumstances. Where the use of money is given, the gift is of the interest only, and security must be given, or a trustee appointed, of whom a bond would be required. All rules may be changed, according to circumstances, as a court of equity may deem proper: Whittemore v. Russell, 80 Me. 297, 6 Am. St. Rep. 200. If a Testator, in Creating a Life Estate With Remainder Over, has not required the life tenant to give security for the benefit of the remaindermen, courts are not authorized to require it in the absence of any showing of danger or liability to waste, for otherwise the intention of the testator that the life tenant shall enjoy the property will be frustrated. Yet when the estate consists of moneys or securities, courts act with greater caution in guarding the interests of the parties than in other cases, and may require security of the life tenant if he is not kindly disposed toward the remaindermen, and does not exhibit the prudence in managing the property essential to its preservation: Scott v. Scott, 137 Iowa, 239, 126 Am. St. Rep. 277. GREENE v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY. [163 Ala. 138, 50 South. 937.] CARRIER - Goods Burned While Awaiting Shipment.-The failure of a carrier to move a carload of lumber within a reasonable time after notice and request from the shipper to do so, renders the carrier liable for the destruction of the lumber by a fire communieated without other fault of the carrier from a neighboring building. (pp. 68, 69.) Action by Greene against the Louisville and Nashville Railroad Company for damages from the destruction of a carload of lumber by fire. From a judgment for the defendant the plaintiff appeals. Bestor, Bestor & Young, for the appellant. Gregory L. & H. T. Smith, for the appellee. 139 MCCLELLAN, J. The appellant grounds this action for damages upon this omission of the appellee: In "wholly and carelessly" neglecting and "negligently" failing, "as was its [appellee's] duty in the premises," to remove, after notice and request to do so, a car of lumber belonging to appellant, in consequence of which breach of duty, it is averred, the lumber was destroyed in a fire that consumed the mill of Crescent Lumber Company, whereat, or near which. the car was loaded, and at or near which the stated negligent omission of appellee permitted the car of lumber to remain and be destroyed. The only ground of demurrer assigned was that the "complaint shows that the negligence of the defendant complained of was not the proximate cause of the injury sued for." It is insisted by counsel for appellee that no prejudicial error could have attended the sustaining of the demurrer, because the complaint states no cause of action. We cannot approve this contention. That it is the duty of a carrier to exercise due care and to employ reasonable diligence in the forwarding of goods committed to it for conveyance cannot be doubted. The complainant expressly avers that the duty of the defendant in the premises was to move said car, that notice and request so to do was communicated to defendant, and that defendant negligently omitted the performance of that duty, in consequence of which the lumber was destroyed. The argument that in the complaint no destination for the car is averred, no place whereto the defendant was obligated within its duty to remove the car, might (though we are not now invited to decide it) be in point, 140 if a ground of demurrer had been interposed raising that objection to the complaint. It is sufficient to conclude that the complaint avers, expressly, a duty in its breach, and injury in consequence thereof. If the averment of these ordinarily essential elements in the statement of a cause of action are imperfect, demurrer should have been employed to point out the defects. Under the principles announced and applied in Louisville & N. R. R. Co. v. Gidley, 119 Ala. 523, 24 South. 753, and Alabama etc. R. R. Co. v. Quarles, 145 Ala. 436, 117 Am. St. Rep. 52, 40 South. 120, 5 L. R. A., N. S., 867, 8 Ann. Cas. 308, and the very recent decision in Alabama etc. R. R. Co. v. Elliott, 150 Ala. 381, 124 Am. St. Rep. 78, 43 South. 738, 9 L. R. A., N. S., 1264, it must be held that the demurrer was erroneously sustained. The complaint makes a case where the carrier was culpable in its failure to move the car in question, and under such circumstances the destruction of the goods by fire, even though communicated without the carrier's other fault, will be traced in causation to the concurrent causes afforded by the fire and negligent delay in the performance of the duty of removal. The judgment is reversed and the cause is remanded. The Liability of a Carrier Begins when goods are delivered to it for transportation and accepted for that purpose: Railway Co. v. Murphy, 60 Ark. 333, 46 Am. St. Rep. 202; London etc. Fire Ins. Co. v. R. R. Co., 144 N. Y. 200, 43 Am. St. Rep. 752. But until such delivery and acceptance a carrier is ordinarily not responsible for the safety of articles intended for shipment: Tate v. Yazoo etc. R. R. Co., 78 Miss. 842, 84 Am. St. Rep. 649. If a Carrier Wrongfully or Negligently Delays the Transportation of Goods, and by reason of the delay they are injured or destroyed by flood or act of God, the carrier is liable: Wabash R. R. Co. v. Sharpe, 76 Neb. 424, 124 Am. St. Rep. 823, and cases cited in the cross-reference note thereto. Compare, however, Rodgers v. Missouri Pac. Ry. Co., 75 Kan. 222, 121 Am. St. Rep. 416. As to the Liability of a Railroad Company, Specially Contracting Against Loss by Fire, where it negligently delays to forward goods and they are destroyed by fire communicated from a burning building, see Reid v. Evansville etc. R. R. Co., 10 Ind. App. 385, 53 Am. St. Rep. 391. DOBBINS v. WESTERN UNION TELEGRAPH COMPANY. [163 Ala. 222, 50 South. 919.] PUBLIC STREET-Negligence in Leaving Stump of Pole in Street. For a telegraph company to leave the stump of a pole standing in a public street is negligence which renders it liable to a pedestrian who stumbles over it without negligence on his part. (p. 70.) PUBLIC STREET-Negligence in Falling Over Stump in Night. One who in the night-time takes a path angling across a street and leading by the stump of a telegraph pole that has stood for several years in the street, he being familiar with the situation and attempting to guide his steps by referring to objects whose location he knows, is not negligent, as a matter of law, in case he veers from the path and collides with the stump. (p. 71.) PUBLIC STREET-Negligence of Pedestrian in Crossing at Night. Whether a pedestrian taking a path across a street in the ngat-time, which path leads by a stump, exercises due care, is not controlled alone by the facts that the night is dark and that he cannot see the stump before colliding with it. (p. 73.) Action by A. P. Dobbins against the Western Union Telegraph Company for injuries sustained in falling over the stump of a telegraph pole which the company had left standing on the street for several years. Plea 7, referred to in the opinion, is as follows: "Plaintiff himself was guilty of contributory negligence, which proximately caused his injury, in this: Plaintiff knew of the presence of said stump or post, and with said knowledge walked in the night-time where said post was, and where he could not see said post, and collided his body therewith, when by the use of ordinary care and prudence he could have walked past said post, and by pursuing the ordinary path used by pedestrians, at the place where said post was, have avoided colliding with the same.' Plea A: "Plaintiff knew of the presence of said post, and with said knowledge attempted to walk during the nighttime, when it was so dark he could not see said post, in close proximity to the same, and without necessity therefor, there being a well-traveled crossing some distance, to wit, several feet, from said post, of which the plaintiff had knowledge, and which plaintiff knew was safe and secure for the passage of pedestrians; and in so deviating from the well-traveled way plaintiff thereby assumed the risk of being injured by coming in contact with said post." Lavender & Thompson, for the appellant. Denson & Denson, for the appellee. 225 MCCLELLAN, J. There can be no doubt that the act or omission of the appellee in leaving for many years, within the limits of a public street in the town of Centerville, an obstruction created by sawing off a telegraph pole three feet above the ground, was such negligence as to render it liable for injury to a traveler on the street, unless the traveler was himself guilty of negligence contributory to his injury: Postal Tel. Co. v. Jones, 133 Ala. 217, 32 South. 500. The important question presented is whether the appellant was, as a matter of law, guilty of contributory negligence, barring his recovery, as was ruled below. The appellant insists that the inquiry of contributory negligence vel non was for the jury. We approve the contention of the appellant. This court, in City of Montgomery v. Wright, 72 Ala. 411, 47 Am. Rep. 422, announced conclusions which, in our opinion, control the decision of the question on this appeal. There it was contended that because the plaintiff undertook to traverse, in the night-time, a sidewalk in a public street, which had been rendered in part unsafe, and of which fact the plaintiff had knowledge, his act was per se negligent, and barred a recovery for injury resulting from his falling into the "washout.” It appeared that the plaintiff was familiar with the defective condition of the sidewalk, and its iocation and character. It also appeared that the space between the inside line of the sidewalk and the nearest edge thereto of the "washout" was seven feet. It was over this seven feet the plaintiff undertook to travel. After stating the well-known rule prevailing with us as to when contributory negligence vel non is, on the evidence, a question of law only, and hence for the court, and after adverting to the general doctrine that negligence is ordinarily a mixed inquiry of law and 226 fact, it was held that the plaintiff was not, prima facie, guilty of negligence in ordering his course on the occasion as above indicated. The evidence showed, as in this case, that the course taken was one generally used by the public in traversing Bell street, and that, so far as that record revealed, no injury had attended such general use. The court there, very properly we think, accorded weight to the fact that the plaintiff was familiar with the situation with reference to the defect in the sidewalk, its location, and necessarily its danger, if he encountered it. The circumstances of the case at bar require the application. of the rulings made in Wright's case. Here the familiarity of the appellant with the situation created by the "stump" left by the appellee in the street was proven conclusively. He had passed it for years. It was just to the side of the path leading, angling, across the street. The path was of common use by those having the purpose to cross that street and to go in the direction appellant was, on the occasion, headed. Had the appellant not veered from the path, he would not have collided with the obstruction. It was undisputedly shown that appellant undertook to govern his steps, so as to keep the path, by reference to a tree and telephone pole, seen by him on the same side of the street as the "stump, and the relation of which, in point of location, to the tree and telephone pole, were known to him. He testified that he walked carefully-a care and caution employed, it was open to inference, at least, with the view of avoiding contact with the "stump." We cannot now, any more than could be done in Wright's case, ignore the fact of appellant's familiarity with the situation in the street at that point, to the end that he can be pronounced negligent because of his act in attempting to cross the street, even in the night-time, along the 227 path. As stated, by remaining in the path he would not have encountered the "stump." It was in immediate consequence of his veering from the path that he did come in contact with the "stump." His negligence, if such it was, certainly did not consist in his selection of the route across the street, but, if culpable at all, "in the want of care exercised in walking after he made the selection": Wright's Case. The familiarity of appellant with the situation at that point in the street might have had a natural tendency to afford a reasonable assurance, to the ordinarily prudent person likewise circumstanced, that he could safely cross the street by the path, and thus avoid collision with the "stump." It is common knowledge. based on common experience, that a person may avoid an obstacle, even in darkness, by reliance upon memory of |