The action is brought for the alleged negligent killing of the plaintiff’s intestate, by collision with an engine of the defendant railroad company, the injury having occurred while the deceased was walking on the track, or right of way of tbe defendant. The verdict of the jury was in favor of the plaintiff, and his damages were assessed at the sum of five hundred dollars.
1. It is perfectly apparent, upon the whole record, that this finding of the jury necessarily determined every issue raised in favor of the plaintiff, excepting alone the issues affecting the amount of recovery. They manifestly decided, that the defendant was guilty of culpable negligence, for which it was liable in damages to the plaintiff. They decided likewise, that the deceased was not guilty of contributory negligence in any particular which would bar a recovery by his personal representative. The only matter as to which the plaintiff in the court below, who is the appellant here, can or does complain, is, as we have said, the amount of the recovery. He maintains, that the jury should have found a verdict for a larger sum than five hundred dollars. In this aspect of the record, we have a direct authority in the case of Donovan v. South & North Ala. Railroad Co., 79 Ala. 429, for the proposition, that we will not consider as reversible error any ruling of the primary court bearing merely on. the naked question of the defendant’s liability, and not affecting the amount of damages recovered, however erroneous it may be in fact, because, if error, such ruling is error without injury to the plaintiff.
2. The accident, which is the basis of the present action, occurred on February 10th, 1887, before the present Code went into operation. As the statute then stood, the duty of an engineer to ring the bell, or blow the whistle, was expressly required only at the places enumerated in section 1699 of the Code of 1876. This section included regular depots, public road crossings, curves crossed by public roads, where the engineer could not see at least one-fourth of a mile ahead, and incorporated towns or cities. — Code, 1876, §1699. The duty had not then been extended to “villages,” whether incorporated or not,- as in section 1144 of the Code of 1886, *476Conceding that the collection of houses with their inhabitants, which are shown to be adjacent to the place of the accident, constituted a village, there was no statutory duty imposed on the engineer in charge of defendant’s train, to ring the bell, or blow the whistle, at the place where Carrington, the deceased, was killed.
3. The deceased was a trespasser, and had no lawful right to walk on the defendant’s right of way. There was, therefore, no duty devolving on the engineer to anticipate or expect such an unlawful trespass; and hence no duty existed to keep a vigilant look-out for the perpetrator, in the absence of some special fact or reason which called for diligence in this particular.—Bentley v. Ga. Pac. Railway Co., 86 Ala. 484, citing Womack's Case, 84 Ala. 149; Blanton's Case, Ib. 154; Donovan's Case, Ib. 141. As forcibly said by Strong, J. in Phila. & Reading R. R. Co. v. Hummell, 44 Penn. St. 375; 84 Amer. Dec. 457, “there is as perfect a duty to guard against accidental injury to a night intruder into one’s bed-chamber, as there is to look out for trespassers upon a railroad where the public has no right to be.” The sooner this salutaiy principle is understood by the public, the greater will Ido the security of human life, and the fewer will be the number of deaths from reckless exposures of person to the- perilous danger of walking on railroad tracks in the presence of moving engines, of which one now reads every day in the public press.
4. The third charge requested by the plaintiff, in effect, assumes that, “if many people lived in the immediate vicinity where Carrington was killed,” this would constitute a special reason calling for the duty of keeping a vigilant look-out for trespassers. This hypothesis is rather indefinite, especially in view of the fact that the railroad track was not in a street of the alleged village, the adjacent houses being fenced off from the track, and there was no evidence tending to show that the track was used generally by the people in the vicinage, or even to such extent as to','charge the defendant with notice of any probability of encountering a trespasser at or near the point of accident. The'’ charge was properly refused, independently of the fact that it relates only to the question of defendant’s liability, and not the measure of plaintiff’s damage.
5. The second and third charges assert, in substance, that the decedent’s want of ordinary care- — -or, in other words, his contributory negligence — would be overcome by the “gross *477negligence” of the defendant, without regard to its nature as evidencing the presumption of a conscious indifference to consequences. “Gross negligence,” generically speaking, would not he sufficient to overcome contributory negligence of plaintiff’s intestate, unless it was negligence to a degree that was wanton, reckless, or intentional. We have many times so declared the rule.—Bentley's Case, 86 Ala. 484; Womack's Case, 84 Ala. 141; Cook's Case, 67 Ala. 553; Frazer's Case, 81 Ala. 200; Blanton's Case, 84 Ala. 155. Even the analogous principle, which authorizes the recovery of exemplary damages, does so only when the negligence is so gross as to raise the presumption of a conscious indifference to consequences.—Leinkauff v. Morris, 66 Ala. 406; Western Union Tel. Co. v. Way, 83 Ala. 542.
6. The fourth charge, asserting that the jury “may find” a certain conclusion from the state of facts hypothesized, was merely an argument, and announced no proposition of law. It was properly refused.—Hussey's Case, 86 Ala. 34; Snider v. Burks, 84 Ala. 53.
7. The court properly refused to admit the evidence tending to prove.that persons in the neighborhood were accustomed to cross the track by a foot-path, a hundred yards or so distant from the place of the accident, in order to get water from a spring on the East side. The decedent was not crossing at this path for any such purpose, but was walking up the track laterally, or longitudinally. Hence, an alleged implied license given to others to cross the path to obtain water, would be irrelevant to prove a license to use the track for pedestrian purposes generally.
8. Nor did the court err in refusing to allow the plaintiff to prove that other persons were in the habit of walking along the track, at or near the place where Carrington was killed. We so held in Womack's Case, 84 Ala. 149. The evidence does not tend to show a voluntary license from the railroad company for the public to use its track as a highway for pedestrians, mere acquiescence not being invitation.—Louisville, &c., Railway Co. v. Phillips, 112 Ind. 59; 2 Amer. St. Rep. 155, 161; Pratt Coal & Iron Co. v. Davis, 79 Ala. 308.
We find no error in the record, and the judgment is affirmed.