— The act “To prevent homicides,” approved February 5, 1872 — Sess.. Acts 1871-72, p. 83 — is now § 2641 of the Code of 1876. It provides for civil redress, when death ensues from the “ wrongful act or omission of another.” Such redress was unknown to the common law. To come within its provisions there must be a homicide, the result of the wrongful act or omission of another. If death does not follow, the statute lends no aid to the case. It must then be governed by the principles of the common law and our general statutes on the subject, which determine when and to what extent civil redress can be recovered for personal injuries less than fatal, which were caused by the negligent conduct of another. The measure of recovery, whether simply compensatory or punitive — sometimes called exemplary — depends on the degree of negligence, whether simple or gross. — McAlpine v. Ala. Gt. So. R. R. Co. (in MSS). Section 2641 of the Code has nothing to do with this ease.
In S. & M. R. R. Co. v. Shearer, 58 Ala. 672, and in S. & N. B. B. Co. v. Sullivan, 59 Ala. 272, we declared that in certain conditions, trains moving backwards should maintain a watchman or lookout, to guard against danger. The injury complained of in this case does not fall within that rule. In addition, the switchman was in a position to warn *184all persons of proximate danger to be apprehended from the backing train, and tlins the rule, if applicable to this case, would seem to have been complied with. The rule does not extend to such consequential injuries as are complained of in this case. The present case is governed bv §§ 1699, 1700 of the Code of 1876.
Having shown that section 2641 of the Code has nothing to do with this case, it follows that several rulings of the Circuit Court were erroneous. Among them we may specify charge 2, given at the'instance of plaintiff, and all other rulings which treat that section of the Code as bearing on the questions raised. The first paragraph of charge 2, asked by defendant, also asserts a correct legal proposition. We will consider its second clause further on.
Having shown that under the facts of this case there was no special duty resting on the management to have a watchman stationed near the opening where plaintiff received her injury, the court should not have given the portions of the general charge excepted to as A and B, and should have given charges 9 and 10, asked by defendant. Charge 12, asked by defendant, asserts a correct legal proposition, although one of its clauses is objectionable as being argumentative ; the clause commencing : “ Or, that they must from fear,” etc. That clause should be eliminated.
The questions raised by the testimony are the following : Did the defendant, when putting its train in motion, blow its whistle or ring its bell, and continue to do so ? The burden was on the railroad of satisfying the jury it did this. If the jury are reasonably convinced by the testimony that this was done, then the plaintiff can not recover. If the jury are not satisfied this was done, then their next inquiry is, did this failure cause plaintiff’s injury ? Would she probably have escaped injury, if the signal of motion had been given. In connection with this, is also the inquiry, did she contribute proximately to the injury she suffered ? If she did, this also defeats her action.
The first charge asked for defendant was; that if the jury believed the evidence, they must find for defendant. This charge was proper, only in the event the testimony most favorable to plaintiff convicted her of proximate contributory negligence. There is conflict in the testimony which can not be reconciled; but none of the witnesses vary in their statements of the circumstances under which plaintiff entered the little opening between the cars and stood upon the track, nor the purpose for which she did so. All agree in stating she went of her own accord, on her own business or pleasure, and there is no testimony from which it can be *185inferred that any of the employees of the railroad knew sbe was there, or could have known it without walking a considerable distance along the track. Yiewed in tbe most favorable light for her, the plaintiff, according to the testimony, was guilty of negligence in being where she was, and that negligence contributed proximately to the injury she complains of. This principle is fully sustained by the following authorities.— VanShaick v. Hudson River R. R. Co., 43 N. Y. 527 ; Pzolla v. Mich. Cen. R. R. Co., 54 Mich. 273 ; Tully v. Fitchburg R. R. Co., 134 Mass. 499 ; Dun v. S. & R. R. R. Co., 78 Va. 645 ; M. & C. R. R. Co. v. Copeland, 61 Ala. 376; Railroad Co. v. Letcher, 69 Ala. 106; Thompson v. Duncan, 76 Ala. 334; M. & E. Ry, Co. v. Thompson, 77 Ala. 458. Charges 1 and 11 ought to have been given.
What we bave said above will probably be decisive of this case. We need not, therefore, consider the question of damages. The doctrine is fully discussed in the following-cases, from which we have no wish to depart. — Barbour Co. v. Horn, 48 Ala. 566; S. & N. R. R. Co. v. McLendon, 63 Ala. 266 ; Lienkauf v. Morris, 66 Ala. 406 ; Wilkinson v. Searcy, 76 Ala. 176; S. & N. R. R. Co. v. Huffman, Ib. 492.
There is no testimony in this case to authorize vindictive damages.
Reversed and remanded.