This suit was brought by R. B. Dennis, as administrator of the estate of Benjamin Dennis, deceased, against the St. Louis San Francisco Railway Company, to recover damages for killing Benjamin Dennis, under the Homicide Act (Code 1907, § 5696), which occurred about November 10, 1921. The jury returned a verdict in favor of the plaintiff, and, from a judgment thereon by the court, the defendant prosecutes this appeal.
This cause was submitted to the jury on two counts, numbered 2 and 4: The former charged wanton negligence, and the latter subsequent negligence, and the only plea to these counts was general issue. Demurrers to count 2, the wanton count, were overruled by the court, and this action of the court is assigned as error. This count alleges the defendant was operating a railroad, with trains propelled by locomotives thereon, through Beaverton, Lamar county, Ala., and its servants, agents, or employés, in charge or control of a train on the track at *Page 592 or near Beaverton, while acting within the line and scope of their authority as such, "wantonly caused or allowed the said train or locomotive to strike plaintiff's said intestate * * * while he was on or near the said railroad track, thereby causing his death." It charges he was wantonly struck "while on or near" the said railroad track. Each alternative "on or near" was sufficient under the direct charge that it was wantonly done. It does not attempt to set forth the facts showing the wanton misconduct; but alleges it wantonly struck him, while he was "on or near" the track, which is sufficient under our system of pleading. It was not necessary under this wanton charge to allege that he was "dangerously near" the track to make this alternative averment — "near the track," sufficient. It appears from the averments that he was near enough the track to be wantonly struck by the train or locomotive, which clearly shows he was dangerously near it when the count is construed as a whole. He was wantonly struck, and it is immaterial whether he was on or near the track at the time. Each alternative averment, "while on or near" the track, in connection with the other charges in this count, states a cause of action for wanton injury causing death of decedent by being struck by the train or locomotive; and the court did not err in overruling the demurrers of the defendant to it. This count alleges the injury was wantonly inflicted, which this court has held could be done. Birmingham R. L. P. Co. v. Nicholas, 181 Ala. 491,511, 61 So. 361; Barbour v. Shebor, 177 Ala. 304, 58 So. 276; A. G. S. R. R. Co. v. Burgess, 114 Ala. 587, 22 So. 169.
The deceased was about 86 years of age; he was deaf. Under the evidence of the plaintiff he could hear and understand when spoken to in an ordinary tone of voice, and under the defendant's evidence he could hear and understand when spoken to in a "pretty loud" tone.
Beaverton, a station of the defendant's, was an incorporated town with 7 or 8 stores; a road used frequently by the public crossed the track of the defendant in this town, about 130 to 150 yards east of the station. There was a path commencing at this crossing which ran up the track east of the crossing for about 200 feet, and thence off of the track to a pasture, swamp, and creek, which had been used prior to this injury, from 2 to 5 years, by the general public, in going to and from the pasture for and with cattle, going to and from the creek for swimming and fishing purposes. This engineer had been operating engines over this track at this place for 11 years, and the fireman had been assisting for 4 or 5 years. The train that killed the deceased was a freight train with 44 cars; it was daylight — in the afternoon. It was running at the rate of 30 or 35 or 40 miles an hour, on down grade, at the time of the injury; and it was at the time running from the east in a westerly direction. The track was straight for 3 miles east of this crossing. The evidence of the plaintiff tended to show the deceased was struck by the engine while on this road, while crossing the track, and his blood and different parts of his body were found between the middle of this road crossing and west thereof toward the station; that no bell was rung before the injury, and no whistle was blown until just as the deceased was struck, and the speed of the train at the time was from 35 to 40 miles an hour, and it was not checked until after the injury. The evidence of the defendant tended to show: That its engineer saw the deceased coming toward the track east of this crossing when the engine was 250 or 300 feet away. Deceased came up on the track about 12 feet in front of the engine and 40 or 50 feet east of this road crossing. The bell was rung and continued to ring and the alarm whistle blown and continued to be blown, and the emergency brakes were applied as soon as he saw deceased coming toward the track. The train was stopped as soon as possible, which was within 1,600 feet, that the speed of the train was about 30 miles an hour, and all that was known to skillful engineers was done to prevent the injury after deceased started toward the track.
Another part of the evidence of the plaintiff tended to show that deceased was down at this creek fishing, and was returning home, went this path to the railroad track, thence commencing to walk on the track between the rails in this path at a point about 200 feet from the road crossing, and walked in the path on the track to this crossing, and then turned to get off of the track and follow the road, when he was struck by the engine; that the track between him and the engine was straight for 3 miles, and, while he was walking this path on this track for about 200 feet, the bell was not rung and the whistle was not blown; but the alarm whistle was blown just as the engine struck him, and the servants of the defendant were looking toward the deceased, and could have seen him walking 200 feet on the track in front of the engine before it reached him at or near this road crossing.
There was evidence tending to prove the wanton count (No. 2) and the subsequent negligence count (No. 4) of the complaint; and the court did not err in refusing to give the general affirmative charge, with hypothesis, requested by defendant in its favor as to these counts. The evidence was in clear conflict on the allegations of these counts, and the court properly submitted them to the jury under the general issue. McMillan v. Aiken, 205 Ala. 35, 88 So. 135, headnotes 9-11; Southern Ry. Co. v. Stewart, 179 Ala. 308, *Page 593 60 So. 927; Grauer v. A. G. S. R. R. Co., 209 Ala. 569,96 So. 915.
The court in its oral charge stated to the jury the contentions and theories of the plaintiff and defendant from the evidence — in this, it committed no error. The trial court has the right to bring the tendencies of the evidence of each party as to the issue to the attention of the jury. Hawes v. State, 88 Ala. 37, 7 So. 302, headnote 17; Milligan v. State,208 Ala. 223, 94 So. 169; section 5362, Code 1907.
The motion for new trial was presented to and filed with the trial court on March 11, 1924, and it was overruled by the court on March 14, 1924. The judgment in this cause was rendered on the verdict on February 18, 1924, and the defendant filed, on March 10, 1924, its appeal and supersedeas bond from this judgment with the clerk, and it was approved by the clerk on March 10, 1924. This motion for new trial was presented and filed after this appeal bond was approved, and we cannot review the ruling of the trial court on it. The defendant, by filing and having approved the appeal bond on the 10th day of March, 1924, removed the case from the trial court into this court, and, when the motion for new trial was filed on March 11, 1924, this case was then on appeal in this court, and the trial court, by this act of the defendant, had no jurisdiction of this motion for new trial. Allen v. Allen, 80 Ala. 154; McLaughlin v. Beyer, 181 Ala. 427, 61 So. 62, headnote 2.
This court, in Southern Ry. Co. v. Stewart, 179 Ala. 309,60 So. 927, declared the following rule, which is applicable to the tendency of some of the evidence in this cause:
"The principle of these cases is that, where a person is injured at a point on the railroad track or the right of way adjacent thereto, in or very near a populous city, town, or village, where the company has by silent acquiescence permitted the free use of its way by the public and this use is open, notorious, habitual, and long continued by a large or considerable number of people, so that, at the time and place of the injury, the presence of some one was likely and reasonably to be expected by the company's servants, then evidence of these facts is relevant, and may be sufficient, to show that the failure of the servants in charge of a train or car to keep a lookout, or to give warning signals of its approach, was wanton negligence, for the injurious consequences of which even a trespasser may maintain an action. Of course, the notoriety and duration of the public use are important only as tending to charge the company's servants with knowledge of the conditions specified, in the absence of direct proof that they have actual knowledge. The rule on this subject is stated in M. C. R. R. Co. v. Martin, 117 Ala. 367, 385, 23 So. 231."
From this rule it appears the court properly refused written charges numbered 8, 18, 24, 31, and 32, requested by the defendant. It was for the jury to decide from the conflicting evidence and its tendencies whether the defendant was guilty of wanton negligence in injuring the deceased while he was walking in this path between the rails of the track; and the court properly left it for the jury to decide whether the defendant's servants knew at the time of the injury of the general public's use of this path. Under the conflicting evidence, it was for the jury to decide whether the defendant was guilty of wanton negligence in injuring the deceased, if he was injured while crossing the track at the public crossing, or if he was injured while walking the path between the rails toward the crossing. Southern Ry. Co. v. Stewart, 179 Ala. 309, 60 So. 927.
Charge No. 1 was properly refused by the court. It ignores the evidence tending to show the deceased was wantonly injured by defendant's servants while attempting to cross the track at this public road crossing.
The principle of law declared, or attempted to be declared, in written charges numbered 11, 12, 15, 16, 17, 19, 27, 28, and 29, requested by the defendant, and refused by the court were fairly and substantially covered by the oral charge of the court, and the written charges given by the court at the request of the defendant. Section 5364, Code 1907, as amended Acts 1915, p. 815.
Written charges 9 and 10, requested by the defendant, were properly refused by the court for these and probably other reasons, because they were calculated to mislead the jury, and there was no plea of initial contributory negligence in the case.
The general oral charge of the court, when considered as a whole, stated fairly and substantially the law of the case as applicable to all the issues before the jury, and we find no error therein. Beaty v. Palmer, 196 Ala. 67, 71 So. 422, headnote 20; Alabama Power Co. v. Hines, 207 Ala. 346,92 So. 611; Martin v. Manning, 207 Ala. 360, 92 So. 659, headnote 2.
We find no error in the record, and the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur. *Page 594