This is an action for damages for an alleged negligent killing of appellee’s intestate by a locomotive engine while being operated 'by tbe servants *361and. employés of the defendant company over its track or road. The amended complaint contained twelve counts.. The court below gave the affirmative charge for the defendant on all of said counts except the seventh. This count alleges in substance that appellant, the Tennessee Coal, Iron & Railroad Company, on December 7th, 1896, owned and operated a railroad, engines, locomotives and oars and other appurtenances thereto belonging, at or near a town or village known as Easley City, in said county of Jefferson and State of Alabama; that there ■was a footway or path leading across one of defendant’s, ■said railroads, over which many persons passed daily about 5:30 P. M., which the defendant, its agents and servants well knew; that on said date, and about 5:30 P. M., said time being about dark, the plaintiff’s intestate was walking along said path at a point where the same crosses said railroad when the defendant, its agents or servants, without giving any notice of the approach of one of its engines or locomotives to said crossing by ringing a bell or blowing a whistle, and without the use of a headlight on said locomotive, which it was ■its duty to do in the premises, did at the time aforesaid, and when the plaintiff’s intestate was crossing said track at said crossing, violate its said duties, and negligently propelled said* engine or locomotive along said track towards and across said crossing, causing said locomotive or engine to strike, run over and kill said intestate.
To this count six pleas were filed by the defendant, the first being the general issue and the remaining five setting up contributory negligence on part of plaintiff’s intestate. On this state of the pleading issue being joined, a trial was had, resulting in a verdict for the plaintiff.
The charge of negligence in the complaint, is predicated upon acts of omission on the part of the defendant and consisted in the failure of defendant’s agents or employes in control and management of the locomotive to ring the bell or sound the whistle, and in the failure to have a headlight burning on its approach to the place of the accident. These are the only acts of negligence averred as a proximate cause of the injury. There is *362no charge of negligence .on the part of defendant or its servants in control of the engine or locomotive in a failure to maintain a lookout, and under the issue so made up, the question of the duty of maintaining a lookout whether general or special was wholly irrelevant.
While the said deceased had the right to go upon the defendant’s railroad track for the purpose of crossing the same on his -way to his home, and this right of -crossing -said track he had, regardless of the existence of a.pathway, without being a tresspasser in -the exercise •of such right, yet under the averments in the complaint this right was only a crossing right, to be exercised immediately after his ascertaining by his stopping sufficiently long to look and listen to see that he could proceed with safety to himself. He had no right to linger upon ¡the track or walk along tire same, or upon the right of way of defendant in dangerous proximity to the track, the doing of which "would constitute liim a tress-passer.- — L. & N. R. R. Co. v. Hairston, 97 Ala. 352; Stringer v. Ala. Mid. R. R. Co., 99 Ala. 397; Ensley R. R. Co. v. Chewning, 95 Ala. 24.
The burden of proof was upon the plaintiff to show that deceased was killed by 'defendant’s locomotive while the deceased was in tire exercise of this right of immediate crossing and without -delay, and that the -acts of negligence alleged in the complaint on the part of defendant were the proximate cause of tli-e injury. The fact that plaintiff’s intestate was himself an employe of defendant company, being employed -at work at its furnaces, was wholly immaterial under the issues in the case. Under the -averments in the complaint, his relation to the defendant company 'as an emp-loyé in another and different branch of 'its service, imposed no greater duty upon the defendan t at the -time and place mentioned than that due -to any other person exercising the legal right of crossing its tracks. We think that the evidence as disclosed by the record fails to show that the plaintiff has discharged the burden placed upon her bv the law in making out her case. Thqre is no testimony by an eye-witness to the occurrence, that the decedent was crossing the tracks at the time he was -struck by the loco*363motive, nor any evidence from which we think such fact could be reasonably inferred, while on the ■contrary, the testimony of the eye-witnesses to the killing, as well as the tendencies of the whole evidence, go to show that the deceased was not crossing' nor in the act of crossing, as he hud a right to do, at the time of the injury, hut was standing or lingering upon the track.
The plaintiff's witness, Dode Bloeton, expressly disclaims having seen decedent at all until after he had been struck and carried along the track by the engine. 1-Iis testimony throws no light on where he was when struck or what lie was doing when he was struck, Will Black, another witness for the plaintiff, testifies that he first saw him step on the track above the tool house toward the cinder dump aud walk along the track twenty feet further down than the path, where ’lie was struck bj" the engine. His testimony clearly shows that the decedent was a trespasser — Ensley Ry. Co. v. Chewning, 93 Ala. 24. Nelson Goree, another of plaintiff’s witnesses, testifies that when he first saw the decedent he, decedent, was Standing between the side-track and the main line in front of the tool house. He then saw him no more for two or three minutes, after which the engine came along past the tool house and struck him. The witness did not see him when he was struck. He saw him standing within three and one-half feet of the main track two or three minutes before the train came along, and saw him no more then until after he was killed. According to this witness, the decedent had been standing for two or threp minutes on the right of way between the two tracks and in dangerous proximity to them. This was not the exercise of his legal right of immediate crossing.— Stringer v. Ala. Mid. R. R. Co., 99 Ala. 397; L. & N. R. R. Co. v. Hairston, 97 Ala. 351.
Johnson and Perdue, witnesses for the defendant, each testify that the decedent stood in the center of the main line, from two to five or six minutes waiting for Perdue to finish unloading tools from a hand-car, and to go home with Mm. These are the only eye-witnesses to the accident^ except the witness, Mandy. This witness testifies that lie'was one hundred'yards from the *364place of accident, waiting to relieve the engineer of the- ' engine which ran over the decedent. He saw the engine coming down the track towards the tool house. He did not see Hansford, the decedent, on the track at any time, did not see him struck by the engine and didn’t know he was killed until he was told about it some time after. He saw the section foreman and some of his men get off thettrack, and says he did not see anybody get on the track after the section foreman got off. This witness says: “I looked down the track as the section gang'got off the track, and I never looked any more after that until the engine came along right np the side of me.” * * * “I saw the section boss get off just before the train passed by — justa half -a minute before, not that long, I expect — - just a few seconds. I don’t knoAV whether Mr. Hansford was on the track ivhenthe section foreman got off or not. If lie had got on there and stayed there I think I would, have seen him. I don’t know whether he was on or not.” It is clear that this witness does not undertake to testify to the positive fact that Hansford was not standing on the track, or a knowledge of that fact. It was about dark and he was one hundred yards away, and -he says that he -did not look back down the track any more after the section foreman got off; that 'he thinks he would have • seen decedent of he had got on the track and stayed there, but as a conclusion of his whole statement, the witness says he does not know whether Hansford was on the track or not. We do not think the testimony of this-witness raises any conflict in the evidence as to the fact that the decedent at the time of the accident was lingering-upon the track or in dangerous proximity, and was-not exercising Ms legal right of an immediate crossing. The statement by the witness that he “thinks he would have seen the decedent if he had gotten -on the track and stayed there,” was at most but an expression of' opinion, for -he 'says he did not look back after the section foreman got off the track, and is not the equivalent of an affirmative statement of the fact that witness-would have seen Mm if he had gotten on the track and' stayed there. Moreover, it eleafTv -appears that even-in the exercise of the legal right of immediate crossing,. *365that if he, the decedent, had stopped 'to 'look and listen, as it was his duty to do, there was nothing to prevent his .seeing the approaching locomotive and to have saved himself from the injury. If he did not stop and look and listen, or if he did and then attempted to cross immediately in front of an approaching locomotive, in either case he Avas guilty of negligence — Central of Ga. Ry. Co. v. Foshee, ante p. 199.
We decline to consider the assignments of error as to the action of the 'court upon demurrers to the complaint, for the reason that the record shows no judgment by the court upon these demurrers. What is stated in the. record shows' nothing more than a mere memorandum or recital by-the clerk, and not a consideration and adjudging by the court necessary 'to constitute a judgment. The rulings of the court on the admission of evidence raised by assignments of error numbered 2, 3, 1, 7, 9, 10, 11 and 13 are free from fault as the tetimony tended to proAre the allegations of the complaint.
Whether or not many persons Avorked at the furnaces, and crossed the track at the point where Hansford Avas killed, the time of the crossing, ’whether there Avas a 'headlight 'burning on the engine, or the bell was rung or Avhistle Avas -blown at the time of the injury, Avhether the Avitnesses had the opportunity of seeing and hearing the facts stated, Avere pertinent to the inquiry.- — L. & N. R. R. Co. v. Orr, 121 Ala. 489; M. & C. R. R. Co. v. Martin, 117 Ala. 367.
A Avitness may testify to the absence of a thing or the non-appearance of an event, if it is shown he Avas in a position to '¡See and hear the thing inquired about. — Tesney v. State, 77 Ala. 33; McVay v. State, 100 Ala. 110; A. G. S. R. R. Co. v. Linn, 103 Ala. 134.
The assignments of error numbered 5, 8 and 12 are based on objections to testimony calling for the custom of defendant ■'with reference to lighting the headlight of the^engine. This was immaterial, the question being the carrying of a head-light burning on the particular occasion.
The 6th assignment is based upon the admission of evidence against defendant’s objection tending to show *366that 'the engine in question had no’ pilot or cowcatcher. No negligence charged in the complaint Involved this inquiry; it ivas immaterial under the issues, and we think calculated to prejudice the minds of the jury, and its admission against dbjection was error.
What we have said with reference to the issues and the evidence relevant to such issues is sufficient to dispose of other assignments of error based on exceptions to parts of the oral charge, as ivell as to refused- written charges requested by the defendant, without ’a more particular discussion of those exceptions.
For the errors indicated in the foregoing opinion the judgment of the court must be reversed and the cause remanded.