The action is under the homicide statute (Code 1907, § 2485) for the wrongful death of a child six years old. The child was killed by being run over by a passenger train on appellant’s railroad. The injury occurred about 1 o’clock in the afternoon, and at a point about a quarter of a mile from a station, on appellant’s road, in the little town or village of Larkinsville.
The parents of the child lived within a few yards of the railroad track, very near the place at which the child was killed. The child and its older brother were at the home of their parents at the time of the injury. The older one Avas in the house, attending to some domestic duties, while intestate was playing out of doors. The older child had observed the Arounger on the track a feAV minutes (estimated at eight) before the accident. The mother had gone to the depot, which was about a quarter of a mile from her home and the scene of the accident. No- one seems to have seen the child that was killed from the time its brother saw it, about eight minutes before the accident, to the time it was discovered by the engineer in charge of the locomotive that struck it — just a few seconds before the injury.
The engineer was the only person shown to have witnessed the accident. ITis evidence was that he saw the child lying on the track, near the middle, with one foot across one of the rails, and apparently asleep; that he first discovered it Avhen Avithin 80, 90, or 100 yards of it, Avlien the train was running about 25 miles per hour. He testified that as soon as he discovered the presence of the child on the track he shut off steam and applied the emergency brakes, and that this was all he could do; that he brought the train to a stop in about “four car lengths and the engine and tender;” that this would be about 20 yards to the car, and that the engine and tender are equally as long; that the cars were all about the *703same length, except the ladies’ car, which was about 70 feet in length. The engine and train had just left Lar* kinsville.
One Mrs. Downs testified that she lived about 100 yards from the place of the accident; that she went to the scene of the accident as soon as the train stopped; that she asked the engineer what he killed Mr. Albert Smith’s little boy for, and he said he saw the child, but kept thinking it would get off the track, until it was too late to stop the engine, and that he said the child must have been asleep. The engineer denied having made this statement to this witness.
Another witness for plaintiff, who was a passenger on the train, testified that the engineer told him, on the occasion of the injury, that when he (the engineer) first saw something on the track he thought it was a piece of paper but that when he discovered that it was a child it was too late to stop the train; that the train had gotten under good headway. . The plaintiff testified that he had been on engines-in motion, and that he could see as well as when on the ground.
There was evidence that the railroad track at the place of the injury was frequently and much used by the public, and that this fact was known to the engineer and other agents in charge of the train. To the introduction of this evidence the defendant reserved many exceptions.
It was ruled by this court (and we think correctly), on the former appeal, that the unfortunate child was a trespasser upon the track of the defendant when it was killed, and therefore that the defendant and its servants owed it only the duty they owed other trespassers under similar conditions, considering the facts of its age and condition, and that it was apparently asleep on the track at the time of the injury. The law on this subject (the killing of an infant while a trespasser on á *704railroad track) has been often declared by this court.— G. P. R. R. Co. v. Blanton, 84 Ala. 154, 4 South. 621; A. G. S. R. R. Co. v. Moorer, 116 Ala. 642, 22 South. 900; H. A. & B. R R. Co. v Robbins, 124 Ala. 113„ 27 South. 422, 82 Am. St. Rep. 153; G. & A. U. Ry. Co., v. Julian, 133 Ala. 371, 32 South. 135.
Moorer’s Case, supra, reviews the authorities on the subject, and adopts the rule stated by Mr. Elliott, in his work on Railroads (section 125), as the correct one. In the above case this court said: “ ‘In actions for injuries to children, as in other cases, there can be no recovery, unless defendant has been guilty of a breach of duty. " * * There is a sharp conflict among the authorities, however, as to what the duty of a railroad company is to children who come upon its premises as trespassers or mere licensees. We believe the true rule to be that, although the age of the child may be important in determining the question of contributory negligence, or the duty of the company after discovering him, the company is, in general, no more bound to keep its premises safe for children who are trespassers or bare licensees, not invited or enticed by it, than it is to keep them safe for adults.’ This rule, of course, does not apply to children, or to any other person, at a place where they have a right to be, as for instance in a public highway, where it crosses the track, in which case they are not to be treated as trespassers.”
The court properly overruled defendant’s demurrer to count 2. The only reason urged to. show error is that this count did not show that the injury occurred in the state of Alabama. This cause has been tried once before; and all the evidence, including that of defendant, showed that the injury, and only injury, complained of did occur in Alabama. The trial court and the parties all knew the particular injury relied upon, and knew that the injury did occur in this state. The want of *705jurisdiction did not affirmatively appear on the face-of the count, so as to subject it to demurrer for such want; nor was there any necessity to-make it more certain as to where the injury occurred. This all the parties and the court knew when this demurrer was passed upon
It was likewise not necessary for count 4 to allege that the child was on the particular track upon which the train was, and that there was but one track. If there were more than one track at this point, and the child was upon a different track, this was a subject for a special plea; it was not necessary for the complainant to negative that there were more tracks than one at this point.
The court very properly declined to allow the defendant to file the dilatory plea that plaintiff was not the administrator at the time such plea was offered. The case had been tried once, and appealed to this court and reversed, and it was the second trial-before the plea was offered. It came too late for the defendant to he entitled, as matter of right, to file it; and it is not made to appear that the trial court abused its discretion in declining to allow it to be filed.
The trial court properly allowed evidence tending to show that the track of the defendant railroad company at the point of the injury was constantly used by the public as a path or footway. In other words, under the issues in this-case of-wanton and subsequent negligence, it was permissible to show that the track of defendant at the point of the injury was a way over which the public were-wont to go frequently and in great numbers, and that this fact was known to the servants or agents of defendant in charge of the train on the fatal occasion. Such evidence was not admissible for the purpose of showing that decedent had a right to be on the track — that he was not a trespasser; hut it was admissible on the question of wanton negligence, in con*706nection with evidence that those in charge of the train had knowledge of such use of the track by the public.
In Fox’s Case, 167 Ala. 281, 52 South. 890, this court spoke on this subject as follows: “It is true that it is said in Glass’ Case, 94 Ala. 586, 10 South. 215, that evidence of such custom or habit is not admissible; but what the writer evidently meant was that such evidence was not admissible for the purpose of showing that a person on the track, under such conditions, was a trespasser nevertheless. That is evident from the quotation which immediately precedes it, and from what the writer says immediately thereafter, in the same opinion. Such evidence is not admissible for the purpose of showing that the person on the track is not a trespasser, for he is, notwithstanding the custom or habit, still a trespasser, but it is competent and admissible, in connection with other evidence, to show wanton negligence or willful injury on the part of the engineer or persons in control of the train while passing such point.”
Charges 10, 12, and 18, if not otherwise objectionable, were argumentative, and for that reason were properly refused.
As was ruled in this case on the former appeal, it was a question for the jury as to the duty to keep a lookout at the place of the injury; and for this reason charge' 21 and 31 were properly refused.
Charge 25 was not correct when applied to the evidence in this case. The question of subsequent negligence was one for the jury, and this charge took that question from the jury.
Trial courts, as has been often ruled by this court, are under no duty to charge juries that there is no evidence of a given fact. For this reason, if for no other, charge 33 was properly refused.
Charge 36 is confused and uncertain in its meaning, and for this reason, if for no other, was properly refused.
*707The evidence in this case has been carefully éxamined, and we have reached the conclusion that it did not warrant the submission of the question of wantonness to the jury. The court instructed the jury, at defendant’s request, that there could be no recovery as for willful injury; and we are of opinion that the court erred in refusing the affirmative charge to the defendant as to the second count, which declared on wanton conduct. There was no evidence of a willful or intentional injury, nor was there any evidence of such wanton conduct as would be the equivalent of willful or intentional injury. The only culpability shown was that of simple negligence alone. While some of the conditions were shown which often attend wantonness, such as that the injury occurred at a point on the defendant’s track which was frequently used by the public, and this fact of use was known to the servants or agents of defendant in charge or control of the train, yet there was no evidence of any act or omission, on the part of these servants, which could be said to be wantonness.
The train was not being run at a rapid rate of speed, but only at the usual speed of 25 miles per hour. It was not shown that there was a willful or negligent failure to keep a lookout for persons on the track; but, on the contrary, it was affirmatively shown that such a lookout was being kept, and that the unfortunate child was discovered to be on the track when the engine was within 80, 90, or 100 yards of it, and that the engineer used all the means within his power, after discovery of the peril; to stop the train, though his efforts proved unavailing. While there was evidence tending to show that he did not use such means at the very moment he discovered the presence of the child, or an object, on the track, yet this evidence showed that he did so as soon as he was aware that it was a child, and that it was not going to move, or could not move or set off the track.
*708Adverting to the testimony of the woman, to the effect that the engineer told her (at the time of the accident) that he kept thinking the child would get off the track, and that it must have been asleep, and to that of the witness who said the engineer told him that when he first saw the object on the track he thought it was a piece of paper, while this evidence may have tended to show negligence on the part of the engineer in not using all the preventive means at hand or known to skillful engineers, and that he did not use these methods as soon as he might or should have used them, or to show that a skillful and competent engineer could and would have prevented the accident by discovering the child and recognizing its peril sooner, or that a skillful and competent engineer, or even the one in question, could have prevented the injury after the discovery of the peril, by using other and different methods of preventing the injury, such as blowing the whistle, ringing the bell, or reversing the engine, yet a failure to do these things,-as made clear by all the evidence, disputed and undisputed, shows or tends to show nothing more than simple and subsequent negligence.
As has been often said by this court, a mere error of judgment as to the result of doing an act, or of failing to act, having no evil purpose or intent, nor consciousness of probable injury, may constitute simple negligence, but cannot rise to the degree of wanton negligence or willful wrong. Under all the evidence in this case, and under the law as often iterated by this court, the plaintiff was not entitled to recover under the second count of the complaint, which declared on Avanton negligence. — See Bowers’ Case, 110 Ala. 328, 20 South. 345; Lee’s Case, 92 Ala. 272, 9 South. 230; Webb’s Case, 97 Ala. 308, 12 South. 374; Anchors’ Case, 114 Ala. 501, 22 South. 279, 62 Am. St. Rep. 116; Moorer’s Case, 116 Ala. 645, 22 South. 900.
*709While there was no direct or positive evidence of subsequent negligence after discovery of the peril, there was such evidence of fact, and such conflict of evidence, as to authorize the jury to infer the1 existence of such negligence; and for this reason the trial court properly declined to give the affirmative charge for the defendant as to the count declaring on subsequent negligence after discovery of peril.
For the error pointed out, the judgment must he reversed, and the cause remanded.
Reversed and remanded.
Dowdell, C. J., and Simpson, Anderson, Sayre, and Somerville, JJ., concur.