— The action was brought to recover damages for personal injuries. The jury assessed plaintiff’s damages at ten thousand dollars. The complaint contains four counts. Demurrers were interposed to the complaint as a whole, and to each count separately, all of which were overruled by the court. Afterwards additional grounds of demurrer were assigned, but the record fails to show any ruling of the court upon the additional assignments. We presume the defendant waived his right to have the court pass upon those filed subsequent to the ruling of the court upon the demurrer. Issue was then joined upon the plea of the general issue. There was no special plea of contributory negligence, but it is manifest that the case was tried throughout, as if this defense had been specially pleaded. On the authority of the case of Richmond & Danville R. R. Co. v. Farmer, ante, 141, decided at the present term, we will consider tlie exceptions as if the plea of contributory negligence had been regularly pleaded.
It is argued, that under the rule declared in Highland Avenue & Belt R. R. Co. v. Dusenberry, 94 Ala. 413, s. c. 10 So. Rep. 274, the complaint and each count thereof was defective, and that the court erred in overruling the demurrer. There may be some expressions in the Dusenberry case which apparently sustain this contention, but regard must be had to the character of the complaint, then under consideration. The pleader had united in the same count, causes of action arising under different sub-divisions of section 2590, and some of the averments were made disjunctively. It was not held that where the several causes, averred and relied upon for a recovery, arose under the same sub-division, were stated separately, but not disjunctively, and each averment contained a substantive cause of action, that such a count was demurrable. A count of this character fully informs tlie defendant that each substantive averment is relied upon, and he may prepare his defense accordingly. Proof of either will authorize a recovery. The distinction must be *266kept in mind, where a single count contains several distinct, independent, averments, each presenting a substantive cause of action, and a count containing several averments, all entering into as a part of, and contributing to make up but one cause of action. As to the former, proof of either will authorize a recovery, whereas in the latter case, it is necessary to prove all the averments which, according to the pleadings, constitute the negligence. Under our system of pleading,we hold the demurrers were properly overruled.
The court charged the jury, if they believed the evidence, to find for the defendant under the first count. An instruction of this character ordinarily relieves the court of the necessity of considering the demurrer to the count, but as the case must be reversed, we have thought best to consider its sufficiency ; and for the further reason that the • record shows that notwithstanding the general charge to find for the defendant under this count, the court refused to give certain charges (notably the 13th and ldtli) which could have arisen under the first count only. The first count is the only one which charges a defect in the ways, works and machinery, and the two charges mentioned refer directly to the condition of the brake.
There was no cause of demurrer assigned to the áth count, and no question as to its efficiency is before us.
The witness was asked, against the objection and exception of the defendant, if he knew any thing about running an engine; and ansAvered that he did not. The witness had stated the relative authority of all the employees present; that he was conductor, under yard-master McNutt and assistant yard-master Jennings, and that the engineer “had full control of the running” of the engine, but the crew Avere under the charge of the plaintiff. We do not perceive the materiality of the evidence elicited by the question, or how it was calculated to tliroAV any light upon the issue before the jury. We think the proof shows that the witness had ample experience to give his opinion as an expert as to the effect of a car heavily loaded or empty, running rapidly over a switch improperly set. He had experience in the business eight or nine years. It is unnecessary to consider whether it was proper to ask the witness as to the custom and practice of engineers on the railroad of defendant to stop before passing through a switch. The evidence of both parties introduced Avithout objection tended to show that a rule of the company imposed this duty upon engineers, although there was some testimony tending to shoAv that the rule did *267not require it of the engineer without a signal to that effect.
The declaration of McNutt, made the night before the accident, “never mind the switch, it was all right,” &c., was admissible for the purpose of showing that he knew where the switch was located. The evidence was competent for this purpose, and its application might have been limited, by an appropriate instruction to the jury at the request of the defendant.
I' is not necessary to make proof of a fact judicially known to the court, but proof of sueli fact is not an error, of which either party can complain. The introduction in evidence of the “American table of mortality” was not a reversible error. Gordon, Rankin & Co. v. Tweedy, 74 Ala. 237; McDonald v. Gold Life Ins. Co., 85 Ala. 401; Highland Ave. & Belt R. R. Co. v. Walters, 91 Ala. 435.
"We will attempt to declare, the principles of law which appear to be applicable to the different phases of the evidence. If McNutt, the yard-master and the superior of all the other employees present, personally took the place of the engineer and was running the engine at the time of the accident, the defendant railroad corporation would be liable for his negligence, the same as if the engineer himself had been in charge and had been guilty of the same act of negligence; or if the engineer was in charge running the engine, and Mc-Nutt was present, directing and controlling the engineer, at the time, he would be a person, according to the evidence, entrusted with superintendence, within the meaning of subdivision 2 of section 2590, and exercising a superintendence, and the defendant would be liable for his negligence. If the engineer Harrison was in charge, running the engine, acting as such, independent of the presence of McNutt, the defendant would be liable for his act of negligence. Under the evidence in this case, as it appears in the record, it would have been an invasion of the province of the jury for the court to have declared a conclusion upon the different phases of the evidence, under which these questions were presented. We presume from the construction of the complaint, it was intended to meet each one of them.
It is undisputed that McNutt, the engineer Harrison, and the plaintiff, all knew where the switch was located. If it was a rule of the defendant, that the engineer should slow up and if necessary stop his engine before reaching a switch, to^ascertain whether it was properly set; and if in disobedience of this reasonable rule, the person running the engine pushed the cars over the switch at a rapid rate when im*268properly set, and caused the derailment and injury, the defendant would be liable, unless the plaintiff was guilty of contributory negligence. If the rules of the company made it equally the duty of the plaintiff to signal the engineer to slow up or stop, as the engine approached the switch, for the purpose of ascertaining the condition of the switch, and he failed to perform this duty, or to see that the signal was given by a proper person, and the derailment and injury resulted in consequence of such negligence also, the plaintiff was guilty of contributory negligence, and could not recover. In such case the plaintiff would have no more right to presume that the engineer would do his duty by slowing up or stopping, than the engineer to presume that plaintiff would do his duty by giving the signal. Under such circumstances both would be guilty of negligence, which proximately led to the result, and if both or either were injured, neither could maintain an action for damages.
It would not follow as a necessary conclusion, that a signal to an engineer running a train at the speed of four or five miles per hour, “to come ahead” or “to come faster,” under all circumstances was a signal to quickly increase the speed to fifteen or twenty miles per hour. Such signal not continued to an engineer running within the city limits, having an ordinance in force forbidding a greater rate of speed than eight miles an hour, or to an engineer nearing a switch, where the rules of the company required that the engine should slow up or stop, might well be considered as a signal to move forward at such speed as would not violate the city ordinance, or render impossible a compliance with the rule of the company, which required that the train be slowed up or stopped before reaching the switch. Charges requested by defendant based upon the assumption that the signal “to come ahead” called for an increase in speed from four or five miles to fifteen or twenty miles per hour, under such circumstances, were properly refused.
There was some evidence tending to show that the slow signal was given immediately after crossing 18th Street, other evidence, when about 150 feet from it, and other, when about 200 feet from the switch, and other that there were no slow signals at all. The jury must determine the facts. Did the engineer increase the speed so rapidly that it could not be slowed up or stopped before reaching the switch ? If so, was the plaintiff at fault, or did the engineer, of his own accord, or upon the mere signal “to come ahead,” under one hypothesis of the evidence we have stated, thus increase the speed of the engine ? If the speed of the train *269had been, increased to eight or ten miles only, instead of fifteen or twenty miles, could the train have been slowed up or stopped as required by the rules of the company? When the speed of the train began to increase more rapidly than was permitted by the municipal law, and to be secure, considering the distance to the switch, did plaintiff use all reasonable diligence to give or cause to be given the slow or stop signal, or was he negligent in this respect ? These questions of disputed fact must be determined by the jury and the instructions to the jury should be framed accordingly. The second charge requested was properly refused. It asserts the proposition that if either plaintiff or Dixon failed to give the signal in time to avert the danger, the defendant was entitled to a verdict. Under this charge, although plaintiff may have properly and in due time have given the signal to stop, yet. because Dixon did not, still the defendant was entitled to a verdict. There is some evidence tending to show that both plaintiff and Dixon signaled the engineer to slow up. Charges 4 and 5 are objectionable for similar reasons.
We can not say that there was no evidence tending to show that McNutt continued to operate or run the engine. He was running it at one time, and it was for the jury to say Avhether they believed the evidence which tended to show he was only present, but not controlling it, when the accident occurred. Charges 21, 23 and 24 assert the law as we have stated it, and ought to have 'been given. While it may be true that it was the duty of the engineer to slow up or stop before reaching the switch, the evidence equally tends to show that it was the duty of the plaintiff to have given the signal to slow up or see that it was given in time, before reaching the switch; and if the plaintiff knew where the switch was, and that it was set for the side track, and failed in this duty, and his negligence in this respect caused the accident, he was guilty of such contributory negligence as would defeat his right to recover, notwithstanding the negligence of the engineer or person superintending the movement of the engine, and this would be equally true, if he failed to give the signal in time, so that by the exercise of preventive effort, the person in control of the engine could obey the signal and slow or'stop the train before reaching the switch.
It is unnecessary to consider each charge separately. We think the rules of law sufficiently stated to guide the court on another trial.
Beversed and remanded.