— This was an action for damages to the plaintiff (appellant), claimed to have resulted from a collision of the defendant’s electric car with a covered delivery wagon in which the plaintiff was riding on a street in New Decatur, Ala. It appears from the testimony of plaintiff and one Mitchell, who was in the wagon with him, that plaintiff was driving a covered delivery wagon, with the curtains down, along Gordon Drive, in New Decatur, which interesects with Jackson street; that they did not stop, look, and listen for a car; that the wagon was struck by the car at the intersection of Gordon Drive and Jackson street, was pushed along the track about 15 feet and turned over on its side, and then pushed along 5 or 8 feet further; that plaintiff could have seen the car out of the .front end of the wagon, by bending forward and putting his head out of the side of the front of the wagon; that the wagon could be seen from the car for about 200 yards. Plaintiff then examined as a witness John Knowles, general superintendent of defendant, who testiefid that if the car was running at a rate of from 4 to 6 miles per hour and the motorman had cut off the electricity and applied brakes the car *104could be stopped within 60 or 80 feet, and if going at the rate of 2 to 3 miles per hour it could he stopped within 20, 25, or 30 feet; that the injury occurred about 50 feet from the intersection of Gordon Drive and Jackson street; that it was downgrade; that there was a contrivance within reach of the motorman by which the current of electricity could be reversed; and that by using this, and applying brakes promptly and with force, the car could be stopped quicker than by simply shutting off the current and applying brakes.
Answers to interrogatories propounded by plaintiff to defendant stated that, when first seen, the wagon was approaching the track obliquely, but proceeding parallel with it. The motorman sounded the gong repeatedly as a warning, cut off the current, and applied the brake, and when the car was within 12 or 15 feet of the wagon the plaintiff attempted to cross the track, and when he saw the car, in place of continuing across, which he could have done before being struck, he pulled his team towards the left, thereby putting the wagon almost lengthwise with the track, and the motorman then “applied the brake further” and brought the car to a standstill as soon as possible, but not until he had come in contact with the wagon. The car was in plain view and several yards distant when plaintiff attempted to cross. When the wagon was first seen by the motorman it was some distance from the track, traveling almost parallel with the track, but approaching nearer to it. The current was cut off and brakes applied when he first saw the wagon, but it was not brought to a full stop until it was made evident that plaintiff was turning back towards the track, as, at the slow rate to which it had been brought, the wagon could have crossed before the car reached it,'if plaintiff had continued across. The car was secondhand, but properly equipped in every particular. Mrs. Moore, who was a passenger in the electric car, testified that the gong was sounded several times, and according to the best of her judgment the car did not strike the wagon at all, but stopped just before reaching it, and she did not know what turned the wagon over. The witness Smith, for the defendant, who was the motorman, but is now working for 'the Southern Railway *105at Selma, Ala., testified that tbe car was going north, and when he first saw the wagon it was going north about 300 yards from the car, and it was about 20 feet from the car when plaintiff first attempted to cross the track; that he sounded the gong a great many times; that there was no current on at that time, and he applied the brakes at once; that, if plaintiff had driven across the track when he turned onto it, he could have crossed before the car reached him; that the car came in contact with the wagon, but did not knock it, and the mules cut around and turned it over;' that he had cut the current off when he first saw the wagon; that he did not have any reason to suppose that plaintiff intended to cross the track until immediately before the wagon was struck; that the car was moving at the rate of about 3 miles per hour when it struck the wagon.
Plaintiff introduced in rebuttal an answer made by said motorman to an interrogatory, to the effect that he stopped the car when he first saw the wagon, and that when he first saw that the wagon was going to cross the track he was about 100 yards from it; that he began to check it up, and gradually rolled down and stopped within 3 feet of- the wagon.
As the witness Smith, in one of his depositions, testified that when he first saw that the plaintiff was going to cross the track he was 100 yards distant, and as there is no plea relying upon the contributory negligence of the plaintiff in turning his team down the track in place of crossing, the court could not give the general charge in favor of the plaintiff, and it' becomes necessary to examine the various assignments of error. • •
As to the first assignment, while the judgment entry shows that the court considered the second, third, and fifth counts, and sustained them, we take it for granted that this was a clerical omission, and that it was a de-rnurrer to said' counts which was sustained. The second count is not subject to the demurrer, and the court erred in sustaining said demurrer.— Foshee’s Case, 125 Ala. 205, 221, 27 South. 1006.
The sustaining of the demurrer to the seventh count of the complaint was error without injury, as the plaintiff did take testimony to show that the car was prop*106erly equipped, and the evidence is without conflict to the effect that there was no defect in the car or its equipment.
The plaintiff’s demurrer to the second plea of defendant was properly overruled. The duties therein referred to have been so often laid down that it is hypercritical to say that the duty of listening must be predicated on the fact that stopping'and looking would not have been effectual.
The exception to that part of the oral charge of the court to the effect that, if the plaintiff was guilty of contributory negligence, the defendant was not liable unless it was guilty of subsequent negligence, was well taken, as the charge pretermitted all reference to wilfulness or wantonness on the part of the defendant.
There was no error in the refusal by the court to give 'charge 9, requested by the. plaintiff. It is not the duty of the motorman to keep such control of his car as to be able “to bring it to a full stop before striking one in the act of crossing the track,” without regard to the suddenness with which said party came upon the track.
There was no error in the refusal to give charge 11, requested by the plaintiff. Said charge was confusing and calculated to mislead the jury. There was not a particle of evidence tending to show that, after the wagon was on the track, there was time sufficient to do anything which could have checked the speed of the car more than it was checked.
While the reason given by the court for refusing to give the nineteenth charge, requested by the plaintiff, was erroneous, yet the charge was properly refused, because it was misleading, and, without explanation, might have made the impression on the minds of the jury that they were not to consider the written showing.
Charge 12, requested by the plaintiff, was properly refused, because it assumed that the car injured the plaintiff, when the evidence was in conflict as to whether or not the car came in contact with the plaintiff at all.
Charge 17, requested by the plaintiff, was properly refused, as it assumes that there was a liability on the defendant,, which he was attempting to escape.
*107The court erred in giving charge 9, requested by the defendant, as it was a question for the jury to decide whether the niotormdn saw that the plaintiff was going to cross the track when it was 100 yeards distant, and, if so, whether his failure thereafter to stop the car was such as to authorize the jury to find that there was wilfulness or wantonness.
There was no error in the giving of charge 12, on the request of the defendant, as, in this case, the plaintiff was clearly guilty of contributory negligence, and, that being the case, the defendant would be liable only on proof showing either that it ivas guilty of willful or wanton conduct or of negligence after discovering the peril of the plaintiff.—L. & N. R. R. Co. v. Sullivan, 59 Ala. 272, 282; Central of Ga. By. v. Lamb, 124 Ala 172, 176, 26 South. 969; M. & O. R. R. v. Martin, 131 Ala. 270, 278, 30 South. 827; Central of Ga. Ry. v. Foshee, 125 Ala. 201, 216, 217-18, 27 South. 1006. We do not understand the case of Birmingham By., L. & P. Co. v. Brantley, 141 Ala. 614, 619, 37 South. 698, which is based upon the foregoing cases, as asserting any principle, other than as above stated.
The court erred in giving charge 14, requested by the defendant, as the charge does not follow the description of willfulness complained of in the count.
The motion for rehearing is granted, and the judgment'of the court is reversed, and the cause remanded.
Tyson, C. J., and Haralson and Anderson, JJ., concur.