Action for personal injuries. Counts 1, 2, 13, and 14 were those submitted to the jury. Counts 1 and 13 ascribe the injury suffered to negligence attending the operation of an engine and cars at or near a public street crossing in the city of Birmingham. Counts 2 and 14 purport to impute the injury to wilful or wanton misconduct on the part of those in control of the engine and cars on the occasion.
The appellant complains of the ruling below holding that counts 2 and 14 were not defective, in that they were silent in the essential averment that the agents or servants of the defendant were acting within the scope of their employment at the time the injury occurred. The demurrer to- count 2 was comprised of these grounds: (1) That the misconduct was not alleged with sufficient certainty; (2) that the averment of wanton or intentional misconduct was not sufficient. Under our statute (Code 1908, § 5340) it is -evident that these grounds of demurrer did not specify the objection stated above. They were general, and were, hence, properly overruled.
The sixth ground of demurrer to count 14 accurately specified the mentioned objection to this count. It is properly conceded, in substance, in brief for appellant, that there are no patented .words for -charging the misconduct imputed to have been committed or omitted “within the scope of the servant’s employment”; but it is correctly insisted that such fact must appear in a count in such cases, in order to render it immune from demurrer taking the objection. This count did not contain the express averment referred to. Does it con*671tain allegations of fact comprehending it? We are of the opinion that it does. It is averred that the defendant was engaged, in July, 1906, in the business of operating a railroad and running thereon engines, etc., for transporting persons and things for hire; that “defendant’s servants or agents then and there operating an engine, to which were attached cars, wantonly or willfully caused or permitted the same to run against plaintiff,” thereby injuring him. The former averment is the basis for the latter, and the latter cannot be interpreted without reference to the former. The latter necessarily refers to the business in which the defendant was engaged, as portrayed in the former averment, and the conduct of the servants or agents in the operation of the engine, with cars attached, necessarily implies that those operating the engines and cars were doing so in the course of business in which the defendant was engaged. To take the latter averment as capable of describing agents or servants of the defendant usurping the function of exercising, for the master, a proper control and use of one of its engines, with cars attached, and to this we are urged for appellant, would be, it seems clear to us, to ignore the antecedent averment of the business pursued by the defendant, and in immediate connection with which the latter averment is employ-' ed, descriptive of a damnifying result attending the-operation “then and there” of one of the defendant’s engines, etc., in the physical control of servants or agents of the defendant. The argument for appellant does not, we think, take due account of all the averments of the count, but rather would turn the interpretation of the count on the single averment describing the conduct of the defendant’s servants or agents. A count must be construed as a whole. A. G. S. R. R. Co. v. Williams, 110 Ala. 230, 37 South. 255, cited for appellant dealt *672in the particular songht to be applied on this appeal, with a cause of action attempted to be stated under subdivision 5 of the employer’s liability act (Code 1907, § 3910), whereby “charge” or “control” of any signal, point, etc., are required to be averred. That decision can have no bearing on the present inquiry, where the relation of master and servant is not relied on, in the pleadings submitted to the the jury to fix liability.
It is argued that count 14 was defective because of its omission to charge snch actual knowledge on the part of the servants of defendant as would support wantonness, etc., in the act taken or omitted. There was no ground of the demurrer to this count taking that specific objection.
There was no error in overruling the demurrers to counts 2 and 14; and, for like reasons, there was no error in sustaining plaintiff’te demuirrers to pleas of contributory negligence as addressed to counts 2 and 14, which counts charged wanton or willful misconduct.
According to plaintiffs’s contention, he was, at the time of the injury, en route to take a train at the Twenty-Fourth Street crossing, where he was injured, to go to Boyles, whereat he was to take up his duties, as a train flagman, on a train of defendant to be run from Birmingham to Montgomery. There ’were several parallel tracks at or in this crossing. The evidence tends to show that plaintiff was delayed when he reached a point on the sidewalk between two of the tracks of the defendant. The occasion for the delay was the approach or passage of a long freight train going south. It further appears, from some of the evidence, that plaintiff looked both up and down the track, next that occupied by the freight train, a half minute before he was stricken by an engine on such next track, and that he was in *673the act of turning his head to again look, in the direction from which this engine came, when he was injured. It was shown that it was customary for employes of the defendant, whose duties required their presence at Boyles, four miles north of Birmingham, to take an employes’ train, operated by the defendant between Birmingham and Boyles at regular intervals, at this crossing. In this connection plaintiff’s counsel propounded this question to plaintiff as a witness: “I will ask you if it was not a fact that a bulletin was posted naming that as one of the places?” (meaning places at which this employes’ train took up persons going to their work at Boyles). The objection, overruled by the court, to the question, was that it sought immaterial matter. The testimony sought was material in the aspect that it tended to show the right of the plaintiff to he at the crossing on the occasion. Besides, from the bill, it appears that the question had been answered before an objection, stating a ground therefor, was interposed. The objection stated came too late.
The proof tended to show that an electric street light was swung and burning at the crossing, and that the engine inflicting the injury was of the switch engine type, with sloping water tank. The question, propounded to the witness Hopwood, as to how near the rear of the engine a man on the track could be seen by the engineer from his place in the cab, was objected to. The objection to the question was that it took no account of the headlights. The question was then amended so as to hypothesize the presence of the electric street light, and the objection was reinterposed. The court properly overruled the objection. There was a conflict in the testimony whether there was a light on the rear of this engine. It was undoubtedly the right of the plaintiff to elicit the opinion of Hopwood, an experienced *674engineer, under the circumstances hypothesized and supported’ by some phases and tendencies of the evidence. One of the issues in the case was whether the engineer saw plaintiff in a position of peril, at what distance from him, and by the hypothetical question sought evidence bearing on this issue. These considerations dispose of all the assignments except those based on the oral charge of the court, in one particular to be stated, and on refused special charges.
The fraction of the oral charge set out in the bill is, abstractly, a correct proposition of law, though it is also true that notwithstanding one may be in- a position of danger on or near the track, the engine man may assume, under conditions definéd in many cases here, that the endangered party will remove himself from danger. The criticism asserted for appellant is that taken in L. & N. R. R. Co. v. Young, 153 Ala, 232, 45 South. 238, 16 L. R. A. A. (N. S.) 301, to the there quoted part of the oral charge of the court. The part of the oral charge here criticised is squarely within our declaration in the Young Case. The charge here was predicated upon the failure “to take such steps” as Avould avoid injury. The quoted expression is readily subject to an interpretation rendering it the equivalent of the application of proper means, in proper order, set down in the Young Case.
Special charges 1 to 15, inclusive, were refused to defendant. That numbered 1 is a substantial duplicate of charge 19 given at the request of the defendant.
Charge 2 avus- properly refused, for the reason, if not others, that it was confusing, was involved, was calculated to mislead the jury.
Charges 3 and 4 affirmed that the plaintiff was guilty of negligence. Under the evidence in the case negligence, or contributory negligence, vel non, of the plain*675tiff, was plainly a jury question. These charges were well refused.
Charge 5 was correctly refused, because it exacted of the plaintiff, in order to acquit himself of negligence in his conduct, such cautious conduct as would have assured his discovery of the approaching engine in time to have avoided it. The standard, in this as in all cases, for the measurement of conduct with reference to the ascertainment of negligence vel non, is defined in Central of Ga. v. Foshee, 125 Ala. 199, 216, 27 South. 1006, This charge would have raised that standard. Dow-dell, C. J. and Anderson J., are of the opinion that the charge was properly refused, in that it omits to hypothesize the failure of the plaintiff to look and listen.
Charge 6 affirmed that a belief of the evidence forbade a finding “that defendant was guilty of wanton or intentional negligence.” The refusal of the charge may be justified on the ground that the wanton or intentional misconduct was attributable, under the evidence, not to the defendant, but to its servants or agents. But, independent of that criticism there were tendencies in the evidence from which it could have been reasonably concluded that the engineer, Ellison, saw the plaintiff in a position .of peril, and either negligently omitted to perforin his duty to avert injury, or else wantohly or intentionally cause or allowed his engine to strike plaintiff: It was shown, by some of the testimony, that plaintiff was standing between the track on which Ellison’s engine came and a track on which a long freight train was passing; that plaintiff’s back or side was toward Ellison’s engine; that he did not see it until struck thereby; that the space — “clearance—between engines and cars on these t^o tracks was narrow, so narrow as to render it, Ellison testified, dangerous to be there when engines and cars were simultaneously using both tracks. *676Ellison testified: “I kept a lookout down the crossing when I was coming up to it. I looked out for the crossing. There is a street crossing there to look out for, and also a semaphore there at the railroad crossing. I looked at the semaphore and street crossing, too. Nobody was in my sight. As the engine was backing np, I first looked at the street crossing'Avhen I was a car length and a half from it, 50 feet.” The engine was backing, there was some evidence tending to show, when plaintiff was struck by it. An electric light was burning at or over the crossing. There was evidence that the fireman said, presumably addressing the engineer, “Whoa!” two or three times. There was testimony to the effect that this engine, running 2 to 5 miles an hour, could have been stopped almost instantly by the application of the emergency brakes. These are some of the facts and circumstances rendering the issues off negligence vel non of defendant’s servants, of the contributory negligence vel non of the plaintiff, of wanton or intentional misconduct vel non of defendant’s servants, of subsequent negligence after discovery of plaintiff’s peril, and of contributory negligence vel non — all within the issues raised by counts 1, 2, 13, and 14, and pleas thereto — triable by jury. The Bush Case, 122 Ala. 470, 26 South. 168, Young Case, supra, and B. R. L. & P. Co. v. Hendry Jung. 161 Ala. 461, 49 South, 434, are in point, in the important particulars, on the court’s duty, observed by it, to submit these issues to jury for decision.
Charges 7, 8, and 9 had reference to the relation of master and servant, mentioned as existing, not then, however, by some of the evidence offered by. plaintiff in explanation of his presence at and purpose in going to the Twenty-Fourth street crossing. None of the four counts, viz., 1, 2, 13, and 14, submitted to the jury, nor any pleading following them, sought to fix liability *677through the relation of master and servant. No action of the court tended in that direction or to that result. These charges were, therefore, abstract and properly refused.
Charge 10 was faulty, and hence well refused, because it excluded the plaintiff from his right to recover compensatory damages, at least, if, as ivas possible under the pleadings and evidence, the jury found that defendant’s servants were negligent, as distinguished from the more aggravated misconduct, after discovery (if so found) of plaintiff?s peril and his injury proximately resulting therefrom, provided it ivas also found that plaintiff was not guilty of contributory negligence bearing the necessary relation to such subsequent negligence.
We have considered, treated, and decided every error assigned and urged for appellant, and find no error in the record. The judgment is therefore affirmed.
Affirmed.
Dowdell, C. J. and Anderson and Mayfield, JJ., concur.