The record shows that the court gave the general affirmative charge for the defendant (appellant) ■ upon the first, second, third, fourth and fifth counts of *648the complaint. We will eliminate .those counts, there* fore, from our consideration of the case. This fact is not shown by the bill of exceptions, but the charges were in writing, and the trial judge wrote thereon “Given,” and signed his name thereto, in conformity to section 2756 of the Code of 1886, and they are certified to us as a part of the record. We will treat the case as having been tried on the sixth, seventh, eighth and ninth counts.
The sixth alleges that about August 6, 1893, the defendant, a duly authorized corporation, owned a railroad in and near the city of Birmingham, and owned rolling stock and other appliances commonly used in operating a railroad, commonly called a dummy line, and was then and there authorized and empowered by its charter to own and operate said railroad, and then and there permitted one of its trains to be run over and upon its said railroad by persons to whom the control and management of said train had been committed by defendant ; and the plaintiff being then and there a conductor on one of the trains of the Birmingham Railway and Electric Company, which was then also running and operating a railroad commonly called a dummy line for the carriage of passengers ; and the plaintiff, being pn one of the dummy trains of that company, dicharging his duties as conductor, moving on said railroad, on First Avenue in said city, the train on defendant’s road in charge of the persons aforesaid, approached First Avenue, coming across a bridge on Twenty-second street and running into First Avenue, in said city, where its railroad track crossed or approached the track then being used by the train of said Electric Comany, on which plaintiff was, as aforesaid, and when said last named train was passing the point where said two tracks cross or approach each other, as above stated, the train on defendant’s road, ran into and collided with the train on which plaintiff was, injuring the plaintiff. And the count then proceeds to aver that the injury was caused by the negligence of the person or persons in charge of defendant’s said train, in failing, at short intervals, to blow the whistle or ring the bell while running said train across said bridge on Twenty-second Street, the same being in said city.
■ The seventh count, is the same as the sixth, except if *649-alleges the cause of the injury to have been a failure to blow the whistle and ring the bell, &c.
The eighth count is the same, except that it alleges that the injury was caused by the negligence of said persons in charge of defendant’s train in failing to come to a full stop withing one hundred feet of the crossing of said two railroad tracks, and permitting the train of defendant’s road to run along towards said crossing without stopping until after colliding with the train on which plaintiff was.
The ninth count is the same, except that it alleges that the defendant’s train was being operated by the defendant, itself, and that the two tracks crossed (not crossed or approached) each other, at the place of collision ; and it alleges the injury was caused by negligence in the management or running of defendant’s said train by the person or persons put in charge thereof by the defendant.
These counts show such a relation of the defendant to the train alleged to have done the injury, and its operation^ to render it, the defendant, responsible for the negligence of those operating it. — Ricketts v. Birmingham Street Railway Co., 85 Ala. 600; Ga. Pac. R’y Co. v. Underwood, 90 Ala. 49. In legal contemplation, the train was being run by the defendant itself, so far as concerned liability for injuries committed by those actually operating it. They also show prima facie that the Birmingham Railway & Electric Company was in the lawful possession and operation of the road or track on which its train, of which plaintiff was conductor, was moving at the time of the collision. No question of the defendant’s ownership of the track, or of the Electric Company and its conductor being trespassers, arises upon the face of the complaint. The demurrers to the complaint, raising these questions, are properly overruled.
The allegation, admitted by the demurrer, that the defendant’s train ran into and collided with the plaintiff’s train, in the manner stated in the several counts under consideration, raised a presumption of negligence on the part of those operating defendant’s train, causing the collision. Of itself it stated a good cause of actio'n, and being admitted or proven, if no more had been alleged, would have cast upon the defendant the burden of overcoming the presumption. The case made by the counts *650to which, we refer, is, that while the train of the Electric Company was regularly and properly proceeding on the track which it was in the possession and use of, at a point where defendant’s road crossed or approached that track, defendant’s train, on its own track, ran into and collided with it — clearly the allegation of a wrong on the part of defendant, which implies no less a degree of culpability than- negligence on the part of those operating the defendant’s train. But, the sixth, seventh and eighth counts, in express terms, undertake to define the particular negligence which caused the collision, and the sufficiency of those counts must be tested by these special allegations, respectively; and further, by making these allegations, the plaintiff assumed the burden of proving them.
By statute, it was the duty of the engineer to blow the whistle or ring the bell, at short intervals, while moving within the city. — Code of 1886, § 1144. The sixth and seventh counts rély upon non-observance of this regula-tion., One of these — the seventh — is defective. It requires both that the whistle should have been blown and bell rung, at intervals &c. The statute is satisfied by either — both are not'required. The demurrer raising this objection ought to have been sustained.
The eighth count is involved in uncertainty, if not repugnancy, and the objection is raised by the seventh ground of demurrer. As we have seen, it alleges, in one alternative, that defendant’s track crossed the Electric Company’s track, and in another, that it approached the latter track — even stopping short, in this alternative, of alleging a junction of the two tracks. The special negligence alleged is the failure to come to a full stop (as required by the statute) within one hundred feet of the crossing of the two tracks, thus ignoring the alternative allegation, to the effect that the tracks did not cross, but that one merely approached the other. We are constrained, by the rules of good pleading, to hold the count insufficient, and that the demurrer to it is well taken.
The ninth count so alleges the unlawful collision and the particular facts as to how it occurred, as to raise the presumption of negligence to which we have already adverted. There is otherwise no special negligent act or *651omission alleged. The demurrers to this count were properly overruled.
The fifth plea (which.was to the whole complaint) set up' that the train on defendant’s road was equipped with brakes of approved pattern and other appliances for stopping or checking said train, and that the said brakes and appliances had been inspected and tested that day and found sufficient, that said brakes had been successfully applied in stopping said train at Avenue “E” and 22d street, just before the collision ; that as the train was crossing the bridge on 22d street and before the engineer in charge of the engine, or the fireman, saw or could have seen the train on which plaintiff was riding the engineer applied the brakes for the purpose of checking the speed of said train as it approached First Avenue, and then, for the first time, discovered that there was some defect therein and it would not work, and thereupon reversed the engine and applied steam, and used all efforts to check the speed of the train ; that notwithstanding such efforts the train moved or slided on the rails, and the collision occurred without fault on the part of the defendant, its agents or servants ; and alleges that the track on which the plaintiff was riding and the track on which the train which caused the injuries was at the time, were both the property of the defendant, and denies that at said place the tracks were two railroads which crossed each other.
It is observable that this plea excuses the defendant because due care had been used in having the train under control, and in controlling its speed and movement, and that the persons operating it could not check its speed, (though they made every necessary effort to do so), by reason of an unknown and suddenly developed defect in the machinery; and further that both roads were the property of the defendant, and that the place where the collision occurred was not where two railroads crossed each other. The plea though interposed to the whole complaint, does not pretend to answer the sixth and seventh counts which allege that the injury resulted from the failure to ring the bell or blow the whistle. It is obvious, also, that the allegation that both roads were the property of the defendant was no answer to the allegation contained in all the counts, that the road on which plaintiff was riding was being operated by the *652Electric Company; and it constituted no defense to the action. The Electric Company may have operated the road without being a trespasser, notwithstanding the ownership of the road was in the defendant. Nor was the plea an answer to the general charge of negligence set forth in the ninth count. The defendant may have been without fault in the matter of stopping the train or having the train under its control, and yet negligent in giving required signals, or, possibly in other respects bringing about the injury. The plea was a good answer to the eight count only.
There was demurrer to the plea which was overruled ; and thereupon the plaintiff replied specially, that although the track, upon which was the train bearing plaintiff, was the property of the defendant, it was being operated by and with the knowledge, license and consent of the defendant. There was a demurrer to this replication which was overruled, and the ruling is assigned as error. The demurrer to the plea having been overruled, and the defendant being the unsuccessful party and appellant, whereby that ruling is not, and could not, be before us for review, the plea must be treated, on this appeal, as alleging a complete defense to the entire action ; aird the question which- the demurrer to the replication raises is, whether or not the allegation of the plea that both roads were the property of the defendant, shall be regarded as an essential part of it, necessary to be proved in order to make good the defense. If it shall be so regarded, it is obvious the replication avoids it, and, consequently, avoids the whole plea, and the demurrer was properly overruled. If it shall be regarded as a redundant, non-essential allegation, not necessary to to be proved, the replication was obviously bad, and the court erred in overruling to it. The difficulty of the question is enhanced by the conclusion which we have already expressed, that the plea, with the allegation in question eliminated as immaterial, constitutes a good defense to the eighth count of the complaint, whilst no part of the plea, nor the same, as a whole, presents a legal defense to either of the other counts. It is available as a defense to those counts, only because the plaintiff pleaded' to it after his demurrer was overruled. If, therefore, the eight was the only count of the complainant, it would follow that the replication was in avoidance of an imma*653terial allegation only, and, therefore, bad. To the other counts, as we have said, no part or parts of the plea, nor the same as a whole, constitute a legal defense; hence, we think it follows, logically, that, so far as those counts are concerned, no greator importance or materiality can be given to one allegation of the plea than to another. Its allegations being material only by reason of their adoption by the pleaders, they must be considered as adopted,in the aggregate, and all of the same materiality. Wherefore, if the eighth count was out of the case, the replication, in question, would be good. What then results from this condition of the record? In principle, the demurrer to the replication ought to be visited upon the bad plea, which would at once solve the difficulty; but that rule has been changed by statute, and we can now look no further than to the pleading demurred to, and consequently, must observe the rule that in considering the sufficiency of the pleading all intendments must be taken against the pleader. The replication, therefore, must be taken, in all respects, most strongly against the plaintiff. The plea, as we have said, legally answers the eighth count, considering the averment that both roads were the property of the defendant as immaterial. The replication, if sustained would deprive the defendant of its defense to that count, by simply avoiding the immaterial allegation. Our conclusion, therefore, is that the demurrer to it ought to have been sustained.
The seventh plea is substantially the same as the fifth. Replications numbers 6, 7 and 8 were interposed to the two, which replications the court sustained on demurrer. These replications, like the one above considered, avoided the allegation that both roads were the property of the defendant, and then set up matter proper for the complaint but not for replication, to-wit, specific acts of negligence causing the injury, some of which had already been specially alleged in some of the counts of the complaint, and the rest were involved in the general charge of negligence contained in the ninth count. Replications to the plea which professes to answer all the varying causes of complaint set forth in the several counts, are here made to perform the offices of new special counts, introducing matter-already counted upon, and blending it with issues tendered upon the entire complaint. *654This is not proper pleading, and the demurrers to the replications ought to have been sustained.
There was no demurrer to the second replication, as amended, to the sixth plea, on the ground that •the allegations were a departure from the complaint.— Markee’s Case, 103 Ala. 160. The gi’ounds of demurrer assigned were bad. The facts alleged in the replica-cation, if true, are sufficient to deprive the defendant of the defense of contributory negligence set up in the . plea.
Upon another trial the issues and evidence will probably be somewhat differently presented, and we will not pass upon the other questions presented by the record.
Reversed and remanded.