This is an action, under the- Employers’ Liability Act, to recover damages sustained by the death of plaintiff’s ib testate, averred to have been caused by the negligence of the defendant railroad company. The case was tried upon two counts. The first count charges, that the engineer in charge of the engine, ‘ ‘ran said engine without due care and negligently through said cut and around said curve and on the said John S. Markee,” &a., and that his death “was the result of the negligence of said engineer.” The other count charges a defect in the ways, works and machinery. The real contest was upon the first count.
Under former decisions of this court, the complaint was sufficient, and the court did not err in overruling a demurrer to the first or third count of the complaint.— S. & N. Ala. R. R. Co. v. Thompson & Corner, 62 Ala. 494 ; Leach v. Bush, 57 Ala. 145 ; Ensley Railway Co. v. Chewning, 93 Ala. 24; M. & O. R. R. Co. v. George, 94 Ala. 199 ; S. & W. R. R. Co. v. Meadors, 95 Ala. 137.
The defendant pleaded the general issue, and also several pleas setting up contributory negligence as a defense. The first plea of contributory negligence was too general, and the demurrer to it was properly sustained. Tenn. C. L. & R. R. Co. v. Herndon, 100 Ala. 451. The trial proceeded upon issue joined upon the plea of the general issue, and'the pleas of contributory negligence. After the close of the evidence, the court, among other charges, instructed'the jury, as matter of law, the plaintiff was guilty of contributory negligence. For the de*169fenseitis contended, that under the instructions of the court, holding as matter of law that the plea of contributory negligence was sustained, the defendant was entitled to a verdict, and this on the principle often decided, that when issue has been joined upon a plea, even though it be an insufficient plea, the defendant has the right to support it by evidence, and if sustained, he is entitled to a verdict. — Memphis & Charleston R. R. Co. v. Graham, 94 Ala. 545; Farrow v. Andrews, 69 Ala. 97; Mudge v. Treat, 57 Ala. 1.
On the other hand, it is contended by the plaintiff, that under many decisions of this court, although a defendant may show contributory negligence, yet the plaintiff may prove, if he can, that after the discovery, of his danger, the defendant was culpably negligent in not using proper preventive effort to avoid the injury, and upon such proof the plaintiff may still recover, notwithstanding he may have been guilty of contributory negligence. The authorities relied upon to sustain this latter contention are collected in the case of L. & N. R. R. Co. v. Webb, 97 Ala. 308; Hurt’s Case, 101 Ala. 34 ; Tanner v. L. & N. R. R. Co., 60 Ala. 621.
It has also been held that where the plaintiff counts upon willful or wanton negligence, and the proof shows only simple negligence there is that variance between the allegata and probata, which will defeat a recovery.— L. & N. R. R. Co. v. Johnston, 79 Ala. 436 ; Birmingham Min. R. R. Co. v. Jacobs, 92 Ala. 187; Kansas City R. R. Co. v. Crocker, 95 Ala. 432; Highland Ave. & Belt R. R. Co. v. Winn, 93 Ala 308.
It would also seem on principle that if there is that variance between simple negligence and wanton or willful injury that proof of the former will not sustain a complaint charging the latter, that a replication to a plea of contributory negligence, averring willful and intentional injury, would be a departure from a complaint charging simple negligence. — Eskridge v. Ditmars, 51 Ala. 245.
It has also been'decided, that a plea of contributory negligence is no answer to a complaint counting upon willful or wanton negligence. — A. G. S. R. R. Co. v. Frazier, 93 Ala. 45 ; L. & N. R. R. Co. v. Watson, 90 Ala. 68 ; M. & E. R. R. Co. v. Stewart, 91 Ala. 421; Crocker’s Case, 95 Ala. 412.
*170There is not necessarily that inconsistency in these several principles of law which will prevent their proper application in a single suit, if the complaint and pleas are properly framed. Their improper application to the pleadings have led to confusion. The practice which has obtained in this State, and to some extent j ustified by adjudications of this court, of proving willful injury, or wanton negligence as its equivalent, under a complaint averring only simple negligence, should no longer prevail. It is not correct in principle or practice, and leads to confusion or injustice. This court does not generally review assignments of error not properly raised, and excepted to, during the trial, and which are not necessary to a determination of the case. We think it very clear, that a plea of contributory negligencé is no answer to a charge of having intentionally or wantonly caused the death of another. If an engineer saw, or knew, that a person had placed himself upon a railroad track, for the very purpose of being run over and .killed, he could not be justified in running his engine upon such person, because of the willful or intentional misconduct of such person. The proper plea to such a charge is the general issue, and not of contributory negligence; for if the plaintiff counts upon such a charge, and proves it, he is entitled to recover, in cases where the principal is liable for such acts of its agents, notwithstanding the deceased intentionally contributed to his own death. A plaintiff is presumed to know his cause of action when he brings his suit, and has the right to state it in as many counts as he may deem it necessary to meet the varying phases of the evidence, and it is his duty to fully inform the defendant by his declaration of all the grounds of complaint relied upon for a recovery. Having done this, the defendant is in a condition to prepare his pleas in defense. It is not just for the parties to go to trial, and after having entered upon the trial, upon issues shaped by the pleading to permit either party, against the objections of the other, unless specially authorized by statute, to inject anew issue, and allow the plaintiff to recover upon a cause of action not stated in his complaint; or the defendant to avail himself of a defense of which his adversary is not apprised by the plea. If, however, the parties go on without objection, this court will not consider the ob*171jection, if first raised here. If during the trial, it is developed that the pleadings are not suitably framed to meet the evidence, under our liberal system of pleadings, it is the duty of the court to permit, if desired, an amendment of the pleadings, the court taking care to see that no undue advantage is obtained thereby, nor injustice done, and that the amendment does not go to the extent of changing “the form of the action, nor an entire change of parties, nor the substitution or introduction of an entirely new cause of action.” These are the only limitations on the right of amendment.— Mahan v. Smitherman, 71 Ala. 565; Johnson v. Martin, 54 Ala. 271; Code of 1886, § 2833.
A declaration or complaint may in one count aver simple negligence, in another willful and intentional wrong, and proper issues may be made up under the pleas to each count; or, if the complaint charged either the one or the other, and the proof was such as to require an amendment of the pleadings by adding a new count this should be allowed, and a plea to the complaint as amended filed. Justice might require a continuance under some circumstances, but the question of a continuance, to prevent injustice or undue advantage, would depend greatly upon the circumstances of each case.
We think what we have said will suffice on the questions considered.
One material question in the case is, as to whether there was any evidence tending to show negligence on the part of the engineer after the discovery of the danger of plaintiff’s intestate. We do not think a failure to do an act, which if done might or would have avoided the injury, necessarily constitutes it an intentional, or such a willful or wanton wrong as to be the equivalent of intentional wrong. Such a rule would require infallibility in the selection of the means used to prevent the injury. No employer owes such a duty to his employé. Due care and reasonable diligence is all that the law requires. H. A. & B. R. R. Co.v. Sampson, 91 Ala. 563. If the person charged with the duty, consciously fails, or refuses to exercise reasonable care, to prevent an injury after the discovery of peril, or under circumstances where he is chargeable with a knowledge of such peril, and injnry results, he will be guilty of willful injury, or such wanton negligence, as to be its equivalent. If an employé *172or agent charged with the duty, after the discovery Of the peril of a eo-employé, in good faith exercises due diligence and care to prevent an injury, and injury results notwithstanding, it can not be said he is guilty of simple negligence or of intentional and willful wrong.
The evidence shows that the deceased was' a section foreman, riding on the track on a hand-car in the discharge of his duties and at the time going south. ■ The train which ran over him was also going south, heavily loaded with pig iron. The hand-car was about emerging from a cut in which there was a curve, which so obstructed the.view that persons in charge of the train could not see the hand-car or deceased until they were within one hundred and fifty yards of him. The train was running twenty-five miles an hour, schedule time, and down grade. The evidence shows, without conflict, that as soon as the presence of the deceased was discovered, the alarm was given, the brakes were püf on, and then the engine reversed. The engineer and the witness Rosser, who was an expert, testified that this was the most effective method of stopping-the train. The conductor, who had never acted in the-capactity of an engineer, but, from his long employment as conductor-and familiarity with the manner by which engines- are controlled, had acquired sufficient knowledge to render him competent to give expert testimony, testified, that, in his opinion, the most effective way to stop a train-is-by first reversing the engine,- and then to apply the brakes. Whether the one or the other be correct, we think it very clear that if the engineer, after discovering the peril of deceased, adopted the means he believed best adapted to stop the train; and in good faith did all' he could to prevent the collision, it can not be said he was guilty of intentional injury, or such wanton or reckless negligence as to be its equivalent, even though the jury* might believe the conductor-was right in his conclusion’.
There was evidence tending to show that on account of'the speed of the train, its load, and the down gradé, that no- preventive effort could havé prevented the" collision with the- hand-car, after it was seen: If the- jUry should believe this phase of the evidence the engineer was not chargeable with simple' negligence, or’with willful or wanton injury, for a failure of duty arising after the "discovery of the peril of plaintiff’s intestate.
*173It is contended that the engineer was guilty in not blowing his whistle before reaching the curve. It would have been better pleading to have charged this negligence in the complaint, but we will consider the question upon its merits, as the court was requested to give instructions on this point. There was some evidence fending to show that a sign post with the letter “W” stood on the right of the road, just before reaching the curve, which required engineers to blow the whistle before entering the cut and curve. This fact was controverted. The proof showed also that there was a public crossing of the road about one-half mile north of where the injury occurred. The evidence was in conflict as to whether the whistle blowed at the public crossing. The defendant requested the court to instruct the jury, that it owed deceased no duty to blow the whistle at the public crossing, which was refused. It has been decided that section 1144 “was intended to protect and warn persons who at a public crossing pass across and directly on the track,” “and for the benefit of the travelling public, who have a right to be warned of approaching trains, for their personal protection.” — L. & N. R. R. Co. v. Hall, 87 Ala. 718 ; N., C. & St. L. R. R. Co. v. Hembree, 85 Ala. 481; A. G. S. R. R. Co. v. Hawk, 72 Ala. 112. The defendant owed plaintiff’s intestate no duty to blow the whistle at the public crossing. If the post with the letter “W” was at the place testified to by some of the witnesses, and required the engineer to blow before entering the curve, his failure to blow would be negligence . The failure to blow at the public crossing or at the post, having no knowledge of the presence of plaintiff’s intestate, would be simple negligence, no more.— Ga. Pac. Railway Co. v. Lee, 92 Ala. 262 ; H. A. & B. R. R. Co. v. Sampson, 91 Ala. 560.
Was the plaintiff’s intestate guilty of contributory negligence? On this point the following rules of the company were introduced in evidence : “As no signals are carried for extra trains, foremen must use the utmost care in running their hand-cars over the road. Curves and other dangerous places must be flagged. A constant lookout must be kept.” “Extra trains may be expected at any moment, and section foremen must always be prepared to meet them.” These rules were known to deceased, and without contradiction it is shown that the *174train was an ‘ ‘extra train, ’ ’ that deceased did not observe the rule and put out a “flag” at the curve as required by the rule ; that if the curve had been properly flagged the engineer would have had time and space within which to stop the train before reaching the point of col • lision. Under this evidence the deceased was guilty of, negligence himself. — Richmond & Danville R. R. Co. v. Hammond, 93 Ala. 181.
Thus far we have not referred to the evidence by the witnesses for the plaintiff and defendant which shows that there were five persons on the hand-car, all of whom jumped safely off the hand-car. If it be true, as testified to by some of the witnesses, both for the plaintiff and defendant, that the deceased escaped the peril of a collision by jumping from the hand-car, and was in a Safe position, and voluntarily returned to the hand-car, and in an endeavor to get the hand-car from off the track was caught by it and held, until the freight train collided and ran over deceased, and it was not possible by the use of all reasonable preventive effort to stop the train so as to prevent a collision after the deceased returned to the hand-car, under no principle of law can the defendant be held liable for a neglect of duty by the engineer-.
The trial court can not be put in error for not charging upon the effect of evidence ex mero motu. The statute is positive, (Code, 1886, § 2754) ; and certainly the defendant can not complain of a charge given at its request. —Hurt’s Case, 101 Ala. 34.
The evidence shows that deceased left a wife and two children, that he was receiving forty dollars a month; “that he appropriated his wages to the comfort and support of his family.” “It took all his wages to support himself and his family.” “That it took about five dollars a month to clothe himself, and about ten or twelve dollars a month to feed himself.” We believe this to be all the evidence on this point. We are of opinion that the case is brought fairly within the principle declared in the Trammell Case, 93 Ala. 350; that it involves a dependent relationship and no pecuniary interest except by way of support and maintenance. In the oral charge the coui't instructed the jury as follows: “If the case should appear to be one where the deceased would have, in addition to assisting in the support of the next of kin, accumulated an estate which would have gone to them *175at Ms death, that might be taken into consideration in measuring the pecuniary loss,” &c. The principle of law here stated may be correct, but we fail to find any evidence to which it could be referred. It was abstract and misleading, and though this court will not reverse a case for an abstract charge asserting a correct principle, unless it is manifest that injury resulted, it is the safe rule, to omit or refuse instructions of this character.
Where there are so many exceptions as appear in the' present record, we can do no more than declare general principles of law, which govern them, and leave their application to the trial court. This, in our opinion, has been done with sufficient care in the case before us.
Reversed and remanded.