This is an action by the appellee for damages on account of the death of plaintiff’s intestate (who was her husband), claimed to have been the result of the employee of defendant in charge or control of an engine Avantonly or intentionally causing or allowing said engine to run upon or against said intestate. There was also a count in simple negligence, Avhich was charged out, on account of contributory negligence.
The appellant claims that the general charge should have been given in favor of the defendant, first, because the evidence failed to show Avillful or wanton conduct.
There Avas evidence tending to shoAV that the place Avhere the intestate was killed was in a populous district, Avhere the public are wont to cross with such frequency and in such numbers Avithin the knowledge of the conductor and engineer as to charge them with knowledge of the probable consequences of maintaining a high rate of speed at such place Avithout signals of approach. — Highland Ave. & Belt. R. v. Robbins, 124 *644Ala. 114, 116, 27 South. 422, 82 Am. St. Rep. 153; Ala. Gt. South. R. R. Co. v. Guest, 144 Ala. 373, 380, 39 South. 654; Ala. Gt. South. R. R. Co. v. Guest, 136 Ala. 353, 34 South. 968; B. R. L. & P. Co. v. Ryan, 148 Ala. 69, 71, 41 South. 616. We cannot say as a matter of law that the train did not approach the crossing in such a manner as to constitute wantonness. The evidence is in conflict as to the speed at which the train was moving. There is evidence tending to show that no signals of approach were given save the waving of the red flag, and there is no proof that the meaning of the waving of the flag was known or made known to the intestate, or that it was known by the public generally. Even if the' falling of the intestate could be considered as an efficient intervening cause, the evidence is in conflict as to whether or not he did fall. The question as to whether the servants of defendant were guilty of wanton conduct was, under all. the circumstances of this case, a matter for the jury to consider. Consequently there was no error in the refusal to give the general charge, as requetsed by the defendant, being charges 1 and 3.
It is next insisted that there is a variance between the allegation of the complaint that the servant of defendant “caused or allowed said engine to run upon or against said intestate” and the proof that it was one of the cars attached to the engine which ran against him, and not the engine itself. So far as the rights and liabilities of the parties are concerned, it is immaterial whether the engine or the car ran against the intestate. The engine was the instrument which caused the collision, and, whether the intestate was struck by the engine, it was the engine which caused the death, and, if there was negligence or wantonness in any .one, it was in the management of the engine. We do not find any-*645tiling in orn* reports contrary to this holding. The case of Smith v. Causey, 28 Ala. 655, 658, 65 Am. Dec. 372, ivas an action under a “highly penal statute” (see s. c. 22 Ala. 570), and the court held that the averment that the injury was done by the dogs of the defendant was descriptive of the tort complained of, and there could be no recovery on proof of injury by other dogs. This court has said that, “where a variance in the allegations and proof is relied on to defeat an action, such variance must be of a material or essential fact” (Peck, Adm’r, v. Ashurst, 108 Ala. 438, 19 South. 784) ; also that “an exact correspondence of allegation and proof is not required. It is enough that the one substantially corresponds with the other.” — Wilson v. Smith, 111 Ala. 176; 20 South. 136.
In the case of North Birmingham Street Railway v. (Calderwood, 89 Ala. 247, 253, 254, 7 South. 360, 18 Am. St. Rep. 105, the variance was material, because the liability of the defendant under the law was different according as the stopping of the car was on the east side or -the west; one being the lawful stopping place and the other not. In the case of-Pryor v. L. & N. R. R. Co., 90 Ala. 32, 35, 8 South. 55, the court says: “As the company was not under the same rule of duty to keep in good repair the road bed on the outside of the rails as on the inside and between the rails, * * * we incline to the opinion that there was a fatal variance between the allegations of the complaint and the proof,” and the case was decided on other points without regard to the variance. In the case of Western Railway of Alabama v. Sistrunk, 85 Ala. 352, 357, 5 South. 79, 81, it Avas held that proof of the injury at a different time and place (that is, “betAveen the 16th and 20th of September,” in place of “on the 20th,” and “Avitliin 150 yards of said station,” in place of “Avithin *64675 or 100 yards”) did not constitute a material variance. In the case of Hood v. Pioneer M. & Mfg. Co,, 95 Ala. 461, 11 South. 10, the proof showed the plaintiff to he in an entirely different position from that alleged in the complaint when injured; and the case was not reversed on this.
The sajne is true as to the case of Birmingham Electric Co. v. Brannen, Adm’r, 132 Ala. 431, 433, 31 South. 524; and the court merely says: “To say the least it would be well for the complaint to be amended in this connection.” In the case of Ala. Gt. South. R. R. Co. v. Fulton, 150 Ala. 300, 305, 43 South. 832, while the court remarks that there was a variance between the allegation that the noises were made while the engine was approaching the crossing, and the proof that they were not made until after it had passed the crossing and was returning after being reversed, in the direction of the plaintiff, yet it goes on to place the decision on other grounds. In the case of Ala. Gt. South. R. R. Co. v. McWhorter, 156 Ala. 269, 280, 47 South. 84, the material variance was between alleging that the intestate was in the discharge of his duty and the proof placing him in a position not discharging his duty. Even in criminal cases there are a number of decisions to the effect that proof of killing by another weapon of substantially the same kind as that alleged in the indictment does not constitute a variance. — Hull v. State, 79 Ala. 32; Turner v. State, 97 Ala. 57, 12 South. 54; Jones v. State, 148 Ala. 565, 42 South. 997. We hold that there was not such a variance as to call for the giving of the general charge in favor of the defendant.
On this proposition Dowdell, C. J., and McClellan, Sayre, and Somerville, JJ., concur, and Anderson and Mayfield, JJ., dissent.*647Charges 4 and 5 are argumentative, and were properly refused. At any rate, these charges refer to simple negligence, which was eliminated from the case.
Charge 6 omits all reference to the manner in which the train approached the crossing, and was properly refused.
Charge 7 does not state Avhat Avas meant by the Avaving of the red flag, nor Avhether it was unedrstood by the intestate or the .public, nor does it state whether the calling of the conductor to the intestate Avas at such a distance or under such circumstances as to be heard by the intestate, and it was properly refused.
On the subject of a new trial, all that is shoAvn in regard to the remark made by the counsel for the plaintiff in his argument is that the defendant objected to the remark, and the court sustained the objection. No motion Avas made to exclude the remark, nor Avas any objection offered to the further remarks of counsel. The only ruling being in favor of the defendant, and no exception being reserved, it is difficult to see the basis for an assignment of error either on the application for a rehearing or on this appeal.
As to the presence of the Avidow, the complainant, with her children, her weeping, etc., Avhile it is improper and unprofessional to have such demonstrations before a jury merely for the purpose of working upon the emotions or prejudices of its members, yet, having in view the strict rules Avhich this court has laid down in regard to reversing the action of the primary court in the granting or refusing of a new trial Ave cannot say the court erred in this particular.
The judgment of the court is affirmed.
Doavdell, C. J., and McClellan, Sayre and Somerville, JJ., concur. Anderson and Mayfield, JJ., dissent.