Plaintiff, appellee, while on or near the track of a steam railroad owned and operated by defendant, was injured by a locomotive engine running against him. His case went to the jury on count A alone, thus eliminating consideration of all rulings as to other counts.
To this count the objection is made in the brief, repeating one ground of demurrer assigned, that "it fails to show that at the time plaintiff was struck defendant's agents knew that plaintiff was in peril." This objection is addressed to matter of substance, not mere form of allegation, and is answered by the language of the count, which is, in effect, that defendant's agent in the operation of the locomotive became "aware" of plaintiff's peril, a substantial equivalent for the term preferred by defendant. This disposes of those assignments of error which proceed upon the theory that count A does not sufficiently charge subsequent negligence, but only simple initial negligence.
Special pleas 4 to 8, inclusive (except perhaps plea 5), and 11 and 12, fall within the category stated above. They sufficiently show a case of contributory negligence as an answer to a charge of simple initial negligence, but allege no sufficient reason why defendant's agents in charge of the locomotive should have neglected to make proper efforts to avoid injuring plaintiff after discovering his danger, nor do they allege that defendant's such agents did in fact perform their duty in the case so hypothesized, nor that plaintiff had knowledge on his part of the present and impending peril arising out of the immediate approach of defendant's locomotive. Southern Ry. Co. v. Stewart, 153 Ala. 133,45 So. 51; A. G. S. v. Sanders, 203 Ala. 57, 82 So. 17; Lloyd v. Central of Ga., 200 Ala. 694, 77 So. 237. As for plea 5 as an answer to count A, it amounted to nothing more than the general issue already well pleaded.
By plea 10 defendant advanced the proposition that its negligence subsequent to discovery of plaintiff's peril was answered by an allegation, to state the plea in short, that plaintiff wantonly exposed himself to danger. Without adverting to other peculiarities of this plea, it will suffice to say that it does not charge wantonness on the part of plaintiff, nor yet subsequent negligence, for while it does allege plaintiff's knowledge of the general danger of going upon a railroad track without looking or listening, or stopping if necessary to adequate information, it fails to allege plaintiff's knowledge of a present impending peril. Authorities, supra.
The plea of the statute of limitations (plea 13) was a good plea. N.C. St. L. Ry. v. Hill, 146 Ala. 240, 40 So. 612. The record is not clear that the trial court intended to sustain the demurrer to this plea; but, however that may be, it appears that the cause was tried on that issue, among others, for there was evidence, and the court properly instructed the jury on that issue. Hence our conclusion that the judgment need not be reversed for the error in sustaining the demurrer to the plea.
Under the pleadings there was no issue as to willful, intentional, or wanton wrong on the part of defendant, and the court properly refused all charges on that subject as abstract.
The charge made the subject of the Sixty-sixth assignment of error was refused without reversible error because it left the jury to ascertain the issues in the case by an inspection of the pleadings (B. R., L. P. Co. v. Fox, 174 Ala. 657,56 So. 1013), and because the defenses relied upon were properly submitted to the jury in its oral charge.
We find no sufficient reason for reversing this judgment in the remarks of counsel for plaintiff to the jury. Such matters as the counsel referred to are best left with the court, and such remarks best omitted; but we are not able in this case to affirm that the judgment should be reversed on this account.
This case was one proper for jury decision in the first place, nor was there error in overruling defendant's motion for a new trial. Cobb v. Malone, 92 Ala. 630, 9 So. 738.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur. *Page 602