This action is by the appellant, against the appellees, for damages resulting from injuries received by the plaintiff from a collision of the electric street car of the defendants with a vehicle which was being driven by the plaintiff.
The first assignment of error, insisted on by the appellant, is to the ruling of the court in sustaining the demurrer to the first count of the complaint. There was no error in sustaining said demurrer. While it is true, as contended by appellant, that mere general allegations of negligence have been held sufficient by this court, yet it is also true that if the complaint undertakes to state what the acts of negligence were, the facts stated must show negligence. In the first count, the acts of negligence are, that the motorman “failed to sound the gong or check or stop the car, as was his duty to do;” but the count does not allege that the plaintiff was in perilous proximity to the track, or that the motorman saw, or could have seen, his perilous position, or any other fact raising the duty on the part of the motorman to use the precautions mentioned.— Mobile Light & R. Co. v. Bell, 153 Ala. 90, 45 South. 56; Birmingham Ry., Lt. & Power Co. v. Parker, 156 Ala. 251. 47 South. 138.
*252The third count alleges that the defendant recklessly and wantonly or intentionally caused said injuries and damages to plaintiff, in that defendant, through its agents or servants recklessly or wantonly or intentionally caused said collision. In addition to the fact that the charge in said count is that the wantonness, etc., was the corporate act of the defendant, while the specification describes the acts of its servants, the count is also defective, because the charge is that the act was recklessly and wantonly done, while the specification is that it was recklessly or wantonly done. The word “reckless” is not the equivalent of “wanton” or “intentional.” — K. C., M. & B. R. R. Co. v. Crocker, 95 Ala. 412, 433, 11 South. 262; L. & N. R. Co. v. Barker, 96 Ala. 435, 439, 11 South. 453; Stringer v. Alabama Mineral R. Co., 99 Ala. 397, 410, 13 South. 75; L. & N. R. Co. v. Anchors, Adm’r, 114 Ala. 492, 500, 22 South 279, 62 Am. St. Rep. 116 L. & N. R. Co. v. Orr, 121 Ala. 489, 497, 26 South. 35.
The demurrer to said third count was properly sustained.
The seventh count alleges that the motorman “negligently, carelessly, and wantonly injured the plaintiff,” by running the street car against the vehicle in which plaintiff was riding. Said count was demurred to, among other causes, because “said count seeks to join in one and the same count an action for simple negligence, and an action for wanton negligence or intentional injury.” This court has said that a count which ascribed the injury to “negligence, carelessness and wantonness” was “bad for repugnancy,” as an act could not be done through inadvertence, and .at the same time be done wantonly. There was no demurrer to that count, and the matter coming up on the question whether the plea, of contributory negligence was applicable, the *253court held that, construing the count against the pleader, it charged merely negligence. — L. & N. R. Co. v. Orr, Adm’r, 121 Ala. 489, 497, 498, 26 South. 35. To the same effect is the case of Southern Railway Co. v. Bush, 122 Ala. 470, 482, 26 South. 168, the question not being raised by demurrer.
In the case of Louisville & Nashville Railroad Co. v. Anchors, 114 Ala. 492, 496, 500, 501, 22 South. 279, 282, 62 Am. St. Rep. 116, count 6 used the words “wilfully or wantonly,” but the court held, taking all the averments together, that it charged only negligence, and that the demurrer, setting up an absence of any averments showing wilfulness or wantonness should have been sustained; but the court said: “It may be that this count is objectionable in that it unites averments of simple negligence Avith averments showing wilful injury, but no objection Avas raised on this account, and the demurrer to it Avas properly overruled.”
In the case of Memphis & Charleston Railroad Co. v. Martin, Adrn’r, 117 Ala. 367, 374, 382, 23 South. 231, one of the causes of demurrer was that the count was repugnant and inconsistent, because it combined charges of simple negligence Avith charges of Avanton injury; and the court held that the demurrer should' have been sustained, stating that if the count, had not been demurred to, the court, construing it against the pleader, would have held that it charged only simple negligence.
In the case of Cartlidge v. Sloan, 124 Ala. 596, 599, 600, 26 South. 918, the court declined to consider the action of the court on the demurrers on account of the insufficiency of the statement in the record as to the judgment, but held the count “bad for repugnancy,” and that it would be considered as alleging only simple negligence.
*254When a count contains inconsistent and contradictory averments, in the statement or ‘ description of the cause of action, it is subject to demurrer. — Andrews v. Flack & Wales, 88 Ala. 294, 299, 6 South. 907; Munter & Faber v. Rogers, 50 Ala. 283, 290. Under these authorities we hold that while, if count 7 had not been demurred to, it might have been construed as charging only simple negligence, yet as the point was made by demurrer the count is repugnant, and the demurrer to it was properly sustained.
The ninth count sufficiently charges simple negligence, and the demurrer to it should have been overruled. It does not show that the plaintiff was a trespasser; on the contrary, it alleges that the plaintiff was traveling on that part of a public street, which was usually traveled by the public near the intersection of another street. The street railway company and the public have each the right to the use of the street, and the fact that the plaintiff was traveling on or near the track, did not make him a trespasser, per se. — B. R., L. & P. Co. v. Clarke, 148 Ala. 673, 41 South. 829-831; 27 Am. & Eng. Ency. Law (2d Ed.) pp. 68, 72-74.
The demurrer to count 10 is not set out in the record; hence the court cannot be placed in error for sustaining it. The count is evidently defective and repugnant, as it alleges that the motorman “wilfully, carelessly and wantonly failed to check,” etc., and that “by reason of such negligence and carelessness, said car collided,” etc., also that the plaintiff “suffered said injuries by reason of the negligence and carelessness of the motorman.”
There was no error in sustaining the objection to the question to the witness, Will' Young, as to whether the cars were in the habit of stopping at College street, as that was irrelevant to the issues in the case. Its cus*255tom or habit of stopping at a street a block and a half away conld not shed any light on the speed of the car at this particular time.
The question to the witness, Burt Hargraves, as to what part of the street people traveled on, was not objected to; hence the objection after the answer was made came too late, and the overruling of the objection cannot be a subject of erroi.
There was no error in sustaining the objection to the question to the witness Hall as to whether any officer, conductor, or motorman in charge of the car with the broken step told the witness that it was the same car that had collided with plaintiff’s vehicle. It was hearsay testimony, and a statement of a past transaction.— Tanner’s ex'r v. L. & N. R. R. Co., 60 Ala. 621, 643; A. G. S. R. Co. v. Hawk, 72 Ala. 112, 117, 47 Am. Rep. 403; M. & C. R. Co. v. Womack, Adm’r, 84 Ala. 149, 150, 4 South. 618; Mitcham v. Schuessler Bros., 98 Ala. 635, 637, 13 South. 617.
The plaintiff’s witness, Hall, had stated on his cross-examination that “the driving was much better about a foot and a half from the track, for the outer edges of the street were considerably washed.” On re-examination said Avitness Avas asked by the plaintiff whether there Avere any gullies outside of the regular driveAvay next to the track. No objection Avas made to the question, and the answer , was, “Further away you get from the track, the rougher the street is; the gullies are rough. We always drive close to the rail.” The defendant then objected to the question and ansAver, which objection AAras sustained and the ansAver excluded from the jury. This was error, as the plaintiff had the right to examine the witness further on the rieAV matter brought out on cross-examination, and it was merely a further explanation of what had been stated on cross-*256examination. If the sentence “We always drive close to the rail” was objectionable, the motion should have been to exclude those words and not the entire answer.
There was no error in the sustaining of the objection to the introduction of the ordinance passed by the may- or and aldermen of the City of Florence, some time after the collision complained of, requiring the defendant to regrade the street, and fill in between the cross-ties, as that could throw no light on the question of negligence, some time before that.
With regard to that part of the oral charge of the court marked “Al,” excepted to,, the only insistence of the appellant is that it is misleading. A court cannot be placed in error for giving a charge Avhich is merely misleading. The remedy is to ask an explanatory ■charge.
Appellant excepted to all that portion of. the oral ■charge marked “B2,” and now referring to his ninth assignment objects “to that portion of the general charge AAihich says the use of electricity has increased the degree of care required of travelers.” We find .no such language in this portion of the charge; it only says that “it is the duty of the traveling public to exercise ordinary care.” The court committed no error in this part of the charge.
The tenth assignment refers to that portion of the oral charge marked “C3,” which asserts the proposition that the use of electricity, as a motive poAver, has increased the degree of care by street railway companies and travelers. This is necessarily true. The degree of care to be exercised by both parties must be commensurate with the danger, and an electric car Avhich moves more rapidly than a car drawn by horses necessarily suggests a greater degree of care to avoid collision, and the person driving across or near the track must also *257recognize the greater danger of its overtaking him, and the fact that it cannot b'e so readily stopped, as if it was moving slowly by animal power.
Charge “E5,” correctly states the law, and was properly given. — Birmingham Ry. & Electric. Co. v. Bowers, 110 Ala. 328, 331, 20 South. 345; Birmingham Ry,. Lt. & P. Co. v. Landrum, 153 Ala, 192, 45 South. 198, 202, 127 Am. St. Rep. 25.
Charge “F5” is defective in using the word “essentially” in place of “proxima.telv,” and should not have been given.
There was no error in refusing to give charge 4, requested by the plaintiff. It is not correct to say that if there is “danger of a collision” the motorman must stop the car, because, there is always more or less danger when the car is running and vehicles and persons are moving along the streets. The danger must be imminent. — Schneider v. Mobile Light & R. Co., 146 Ala. 344, 40 South. 761, 762; Birmingham Ry., Lt. & P. Co. v. Clarke, 148 Ala. 673, 41 South. 828, 831.
. There was no error in the refusal to give charge 6, requested by the plaintiff. Merely seeing a person on the track does not raise the duty to stop, unless “he is conscious of the fact that the driver is unaware, or heedless of the danger.” — Schneider’s Case, supra, at page 347 of 146 Ala., at page 762 of 40 South.
There was no error in refusing to give charge 12, requested by the plaintiff,.as it was substantially given in charge 11, given at the request of the plaintiff.
Besides other defects, charge 7, requested by the plaintiff, was misleading, the concluding clause being a peremptory charge to find for the plaintiff in this case.
Charge 17 was argumentative, and properly refused.
If charge 14, given at the request of the defendant, *258was merely misleading, as contended by the appellant, that would not constitute reversible error.
Under the principles hereinbefore stated as to the right of a traveler to drive near or on the track of a street car company, the court erred in giving charge 80, at the request of the defendant.
Charge 31, given at the request of the defendant, was probably misleading but not erroneous. The right of the company is superior to that of the traveler, not in the sense that the traveler has not an equal right to use that part of the street, but only in the sense that it is the duty of the traveler to vacate that part in favor of the car, as the car cannot travel anywhere else.
There was no error in giving charges 35 and 36, at the request of the defendant.
It was not error to give charge 38, at the request of the defendant.
The judgment of the court is reversed and the cause remanded.
Reversed and remanded.
Dowdell, C. J., and McClellan and Mayfield, JJ., concur.