— This action was brought by the appellee to recover damages for the death of his intestate, Robert Taylor Smith, alleged to have been caused by the negligence of' the defendant in running its train of locomotive and cars.
The first assignment of error insisted on is to the action of the court in overruling the demurrers to the fourth count of the complaint. We think that, when the said count alleges that the employes of the company “discovered the plaintiff’s intestate on the track in time to avoid injuring him,” the plain and obvious meaning Is that they discovered that it was a small child on the *181track, and if that ivas not true, but they merely discovered some object which they did not recognize as a child, that would be proper subject for a plea, and not a demurrer ; nor do we think it was necessary for the pleader to allege that the defendant’s employes discovered that he could not- or would, not extricate himself from his perilous position. The presitmption that one on a railroad track will move off on seeing a train approaching does not apply to a child only six years old. “It is not to be supposed that one of such tender age would appreciate the perilous position, or have sufficient judgment and discretion to extricate himself.” — So. Ry. v. Forrister, Adm’r., 158 Ala. 477, 48 South. 69. There was no error in overruling the demurrer to said fourth count.
The next insistence is that the'court erred in overruling the demurrer to the fifth count. This court has frequently held that the employes of a railroad company are not under any obligation to keep a lookout for a trespasser, and that this rule .applies equally to children as to grown persons. It has also held that where the road runs through a thickly populated locality, where persons are in the habit of crossing in such numbers and with such frequency, which is known to the person in charge of the train, that he has reason to believe there are persons in exposed positions on the track, he will be held to a knowledge of the probable consequences of maintaining great speed at, such places, and must consequently keep a lookout, in order to avoid injury. — Ga. Pac. Ry. v. Lee, 92 Ala. 262, 9 South. 230; Ala. Grt. So. R. R. v. Moorer, 116 Ala. 642, 645, 22 South. 900; So. Ry. v. Bush, 122 Ala. 470, 26 South. 168; N. C. & St. L. Ry. v. Harris, 142 Ala. 249, 37 South. 704, 110 Am. St. Rep. 29; s. c. (second appeal) 44 South. 963; Highland Avenue & Belt R. R. v. Robbins, 124 Ala. 114, 116, *182118, 27 South. 422, 82 Am. St. Rep. 153. This court has also held that, it is necessary in a complaint to aver facts showing that the person injured, whether infant or adult, was not a trespasser. — Gadsden & Attalla Ry. v. Julian, 133 Ala. 371, 32 South. 155; So. Ry. v. Bush, supra, 112 Ala. 481, 482, 26 South. 168. Where a child 19 months old, in crossing a, railroad near a. crossing, “turned up the track,” she thereby became a trespasser, and the railroad company owed it no duty, save to avoid injuring it after discovery of its peril. — -N. C. & St. L. Ry. v. Harris, supra. The court, also, in recognizing the duty to keep a lookout in populous localities, said: “But, actionable negligence being a failure1 to discharge a legal duty to the person injured, if there is no duty there is no negligence. And, even if the defendant owed the duty to keep a lookout for persons rightfully on the track, but owned none to the plaintiff, because he was a trespasser, no action will lie, for the duty must be to the person injured.” — Birminghmi Ry., L. & P. Co. v. Jones, 153 Ala. 157, 45 South. 179, 180; and it has been recently held that a complaint is demurrm ble because it “fails to show either that plaintiff’s intestate, when injured, was not a trespasser on defendant’s track, or that defendant’s servants in charge of the train became aware of her perilous position on the track, and were thereafter guilty of actionable misconduct.” — So. Ry. v. Forrister, supra. Count 5 does not allege facts showing that the intestate was not a trespasser. From all that appears in the count, the child may have been lying down on the track, walking up and down thereon, or in various other ways may have been a trespasser, in which case the duty to keep a lookout would not apply. Construing the count strictly against the pleader, the demurrer should have been sustained.
*183' There was no error in the refusal to give charge 38, requested hy the defendant. The charge is argumentative •and abstract. There was nothing in the evidence tending to show that the engineer’s duties to passengers and the United States mails conflicted in any way with his duty to lookout.
Charge 39, requested by the defendant, is argumentative, and was properly refused.
Charge 26, requested hy the defendant, was properly Tefused. While we do not feel called upon to decide that the evidence shows that the place in question was in such frequent and constant use as to require the lookout, yet we are not prepared to say as a matter of law, that it was not.
Charges 16, 15, 24, and 21, requested by the defendant, are argumentative, and were properly refused.
Charges 8, 7, and 2, requested by the defendant, should have been given.
Section 1406, Rev. Code 1867, being a codification of Acts 1851-52, p. 45, made a railroad company liable for all stock killed. Subsequently (Acts 1857-58, p. 15) a railroad company was made liable for injuries to persons or stock from failure to comply with regulations at certain places, and by a later act (Act Jan. 31, 1861, p. 37, § 1) it was provided that the railroad company should be liable for damages to persons or stock from a failure to comply with previous sections, “or any negligence,” and that, “whenever stock is killed or injured, the burden is on the railroad to show that the requirements of the preceding sections were complied with, at the time and place when and where the injury was done.”. — -Rev. Code 1867, § 1401. This court held that the effect of these statutes was that,, if the injury to stock occurred at one of the places mentioned, the burden was on the railroad company to show compliance *184with the statute, if at any other place the burden was on the railroad company to show that it was not the result of negligence. — M. & O. R. R. Co. v. Williams, 53 Ala. 595, 599, 600. This last proposition is based upon the fact that the owner cannot know what train killed his stock, or who,had charge of it (page 600).
Section 1700 of the Code of 1876 is substantially the same as 1401 of the Code of 1867, and this court held that tiie statute had been re-enacted with the construction. — E. T., Va. & Ga. R. R. v. Bayliss, 74 Ala. 150, 159. Section 1147 of the Code of 1886 is the same, except that the burden of proof in regard to stock killed is placed on the railroad company only when killed or injured “at any one of the places specified in the three preceding sections.” The act of Feb. 28, 1887 (Pamph. Acts 1886-87, p. 146), which is copied in a footnote to said section 1147, Code 1886, provides that, “when any person or stock is killed or injured from a failure, etc., or any negligence, the burden of proof * * ■ * is on the railroad company to show the requirements of the preceding section * ® * were complied with at the time and place where the injury tvas done.” It will be seen that this is the same as section 1401, Code 1867, except that it is applied to persons as well as stock. It was held, under this act, that the burden is placed upon the railroad company only as to proof of those specific requirements which are mentioned, and that as to all other matters of negligence the burden remains on the plaintiff. — Ga. Pac. Ry. v. Hughes, 87 Ala. 610, 616-617, 6 South. 413; Ala. Grt. So. R. v. McAlpine, etc., 75 Ala. 114, 118. The Hughes Case was followed as to persons — (Montgomery & E. R. v. Perryman, 91 Ala. 413, 416, 8 South. 699); but these cases were overruled, in a stock case — (Birmingham Mineral Railroad Company v. Harris, 98 Ala. 326, 332, 13 South. 377), and this last case followed in *185L. & N. R. R. v. Dams, 103 Ala. 661, 664, 16 South. 10.
Section 3443 of the Code of 1896 provides for the liability on account of persons or stock “resulting from a failure to comply with the three preceding sections, or any negligence on the part of the company or its' agents, and then provides that when any person or stock is killed or injured at any one of the specified places the burden is on the railroad to show compliance with the sections and that there was no negligence. The decisions under this section are that, in order to place the burden on the defendant, the plaintiff must prove that the injury occurred at or near a crossing, etc. — A. G. S. R. v. Boyd, 124 Ala. 525, 27 South. 408. Section 5476 of the Code of 1907 is a copy of section 3443 of the Code of 1896, except that the words “at any one of the specified places” are omitted, and is therefore a, copy of the act of February 28, 1887, except that it also follows section 3443 of the Code of 1896, in adding, to the proof required of compliance with the requirements of the preceding sections, the words “and that there was no negligence.”
It will be noticed that, up to the time of the adoption of our present Code, the only requirements Avere in regard to injuries occurring at the places mentioned in the statute; for, Avhile the act of February 28, 1887, does not have the clause “at any one of the places specified,” yet it required only that the burden 'was on the railroad company to show that the requirements at such places AArere complied Avith, and consequently it could not inAmlve any other negligence. It is stated, as a rule of construction of revisory statutes, Avhere there has been an alteration of phraseology, that “the language of the statute as revised, or the legislative intent to change the former statute, must be clear before it can be pronounced that there is a change of such statute in construction and operation,” and also, “before the courts can pro*186nounce that the law is changed, the legislative intent to change it must be evident. Language must be employed which is not susceptible of any other just construction.” —Lindsay v. U. S. Savings & Loan Co., 127 Ala. 366, 371, 28 South. 717, 51 L. R. A. 393, and authorities cited.
The history of the successive statutes on this subject shows that the matter which the Legislature had in view was only injuries occurring at the places specified, and section 5476 itself places the burden on the railroad company “to show a compliance with the requirements of such sections, and that there was no negligence on the part of the company or its agents.” There would be no reason in requiring proof of the compliance with the requirements of said sections when the injury occurred at any other place, and it would be impossible to show what place is referred to where the injury occurred between two road crossings. Consequently we hold that the effect of this statute is only to require that, when an injury occurs to persons at any one of the places mentioned in the statute, the burden is on the railroad company to show compliance with the requirements of the statute, and also that there was no other negligence.
Charge 9, requested by the defendant, should have been given. The intestate’s brother, Milton Smith, testified that he saw the child walking down the road shortly before the accident, and the engineer testified that when he first discovered him the boy was lying down, between the rails, with his foot or feet over one rail. These facts were not controverted by any other evidence, and they show that the boy was a trespasser.
The judgment of the court is reversed and remanded.
Reversed and remanded.
Dowdell, O. J., and Denson and Mayfield, JJ., concur.