The second count of the complaint was not subject to the tenth ground of demurrer, being the only one insisted upon by counsel, and the trial court, did not err in overruling same.
The plea of contributory negligence was no answer to the second count.
The complaint avers that the collision occurred at a point where defendant’s track was on the public highway, hut the proof shows that plaintiff’s wagon was struck while on defendant’s track, not on the highway, but at a point to the left of the same. This was a fatal variance as to the first count, which was for simple negligence; and the trial court erred in refusing charge 2, requested by the defendant. The law requires the defendant to keep a lookout at such points as set forth in the complaint, but no such duty was required at such a point as was disclosed by the proof. — Birmingham B. B. v. Brantley, 141 Ala. 615, 37 South. 698.
The variance could not affect the second count, as it is for wantonness, and could not be supported by a failure to discover plaintiff’s peril, but was dependent upon a failure to use proper means to stop after a discovery of his peril.
The judgment of the circuit court is reversed, and the cause remanded.
Reversed and remanded.
Tyson, C. J., and Dowdell and McClellan, JJ., concur.