This suit was brought by Caroline Larkins against fhe railroad company for the recovery of damages for the alleged negligent killing of two mules, the property of plaintiff, by defendant on its track, at a point between/ the city of Montgomery and Barachias, in the county of Montgomery.
The defendant filed two pleas in answer to the complaint, the first of which is the general issue, and the other plea, number 2, is in the following language, to> wit: “For further answer to the complaint defendant says *379that the mules, which are the subject of this suit, came suddenly on the track when the defendant’s engine was so close to the animals that it was impossible to stop said train in time to avoid the accident.” The judgment entry recites that plea number 2 was demurred to, and further shows that the demurrer was sustained, but we fail to find the demurrer set out anywhere in the record. Issue was joined between the parties presumably on the first plea, the plea of the general issue. It is quite apparent that all matters which might have been given in evidence finder the second plea would have been competent as evidence under the general issue, and Ave may add, that the record shows affirmatively that the appellant had under the general issue, .the benefit of the same defense which it sought by its second plea to set up. It, therefore, folloAvs, in accordance Avith .previous decisions of this court, that the action of the court in sustaining the demurrer to defendant’s plea two, if error at all, Avas error Avithout injury to the defendant. — L. & N. R. R. Co. v. Hall, 131 Ala. 161; United States Fidelity & Guaranty Co. v. Damskibsaktieselskabet Habil, 138 Ala. 348.
One of the rulings of the court beloAV Avhick constitutes an assignment of error, Avas the refusal of the court to give the general affirmative charge with hypothesis, requested in writing by the defendant.
The evidence Avithout conflict shoAved that two mules, the property of the plaintiff, Avere killed by a freight train of the defendant on its road at a point between Montgomery and Barachias in Montgomery county, about the 18th day of January, 1903, in the day time, and that the mules Avere of the value of two hundred and seventy-five dollars. The evidence further shoAved that from the point AAdiere the mules Avere struck by the engine, in the direction from AAdiich the train Aims approaching, the road Avas straight for several miles, but that the road Avas up grade to a point tAvo hundred yards from the point on tlie road AAdiere the mules Avere first struck, and that the summit or crest of the grade Avas 200 yards from the place AAdiere the mules Avere struck, in the direction from which the train was approaching. The evidence further shoAved, that the road at the point where the *380mules were struck, rested on' an embankment which was five or six feet high. There was evidence for the plaintiff tending to show that the sides of the embankment where the mules were struck were very steep, so steep that it would be very difficult for a mule to go up the embankment. There was testimony tending to show that the mules could not have been seen by the engineer until the engine reached the crest of the grade. The testimony also showed that the mules were dragged forty or fifty feet after they were struck before they were thrown off the track.
JBinion, the engineer who was in control of the engine, testified when he first saw the mules they were standing immediately by the side of the “track embankment” and were not feeding; that the embankment was five or six feet- high, and when his engine got within one hundred or one hundred and twenty-five yards of the mules, they suddenly ran up the embankment and on the track; that his train was a freight train composed of an engine tender and twelve empty freight cars and was about five hundred and twenty feet long; that he immediately applied the air brakes and that the effect of this.was to apply the brakes to the driving wheels of the engine as well as to the wheels of the cars in the train; that he did not reverse his engine because whenever an engine is equipped with what is called the driver brake a train can be stopped more quickly by applying those brakes by means of the air than it could be by reversing the engine and applying the brakes as well; that after he applied the air brakes there was nothing more that a prudent and skillful engineer could do to stop the train. That the brakes on said train were in good order and when applied they held and retarded the speed of the train. He further testified that it was impossible by all the means known to skillful engineers to> have stopped said train after he first saw said mules and before they were struck, and that he was on the lookout in the direction in which the engine was going and that he could not have seen the mules any sooner than he did because of the grade of the road and the cut through which the road ran; that even *381if they had been on the track they, could not have been seen more than two hundred yards from the summit of the grade. He further swore that the mules were killed fifteen or twenty yards from the trestle in the bottom. Vaughn, a witness for plaintiff in rebuttal swore that the trestle referred to by the witness B inion was one-fourth of a mile from the crest of the grade.
Thomas, a witness for the plaintiff, swore that he was walking along by the side of the railroad when the train passed him and that he was about a fourth of a mile from the point where the mules were killed at the time the train passed him; that he saw the mules before the train passed him and that they wgre then on the track, and that the first, thing he saw after the train passed him, was one of the mules on the cow-catcher, and that just as the train struck the first mule it gave but one blast of the whistle, and this was all the blowing it did; tfffit the train never slacked its speed until after it had killed the mules.
It is apparent that there was sufficient conflict in the evidence to justify the court in refusing the affirmative charge. From Thomas and Vaughn’s evidence the jury would have been warranted in drawing inferences not in harmony with the engineer’s evidence, and in believing that he might have discovered the mules sooner than he testified that he did, and in time to prevent the killing of the mules, by employing proper available means to do so. — L. & N. R. R. Co. v. Gentry, 103 Ala. 635; Chattanooga & Southern R. R. Co. v. Daniel, 122 Ala. 362; Central of Ga. Ry. Co. v. Stark, 126 Ala. 365; Southern Ry. Co. v. Sport, (Ala.) 37 South 344.
For the same reasons which have been given in justification of the court’s refusal to give the affirmative charge, there was no error in the refusal of charge numbered 5.
Refused charge number 7, asked by defendant, is obviously not a correct statement of the law, and in its refusal there is no error. Charges 8 and 11, ignore the evidence which tended to show that the engineer did not make use of the cattle alarm and that there was no slack in the speed of the train. Charge 11 also, fails to hypo*382thesize that the engineer was keeping a proper lookout and might not have discovered the mules earlier. There was no error in refusing charges 8 and 11. — Chattanooga Southern Railway v. Daniels, supra.
Charge 10 gives undue prominence to the testimony of the engineer, Binion, and for this reason, if for none other, the refusal of the charge was not error. The court, committed no error in refusing charge 14. — L. & N. R. R. Co. v. Cochran, 105 Ala. 354; Central of Georgia Ry. Co. v. Stark, supra; Kelton’s Case, 112 Ala. 533; Anniston Electric Co. v. Hewitt, 36 South 39; s. c. 139 Ala. 442.
The court rightly refused to grant the motion for a new trial. There being np error .in the record, the judgment: of the city court is affirmed.
Affirmed.
McClellan, C. J., Haralson and Dowdell, J.J.,. concurring.