(1) It is a well-established rule of law, uniformly adhered to by this conrt, that when an agent or servant in control of an engine or car discovers a person in peril upon the track of a railroad, he must resort to all preventive means known to skilled persons engaged in the management and control of trains, engines, cars, etc., to avert injury. After discovering the peril, he must not only resort to all means at hand to stop or check the train or car, but must resort to all other means known to prudent and skilled trainmen to avert the injury, and which would, under some circumstances, include, the duty of giving a warning as to the approach of the train. It may sometimes happen that a person is on a track and is not discovered in time to stop the train before reaching him, or to so check the speed thereof as to prevent injuring him; yet, if he becomes conscious of the approach of the train and of his danger, he could extricate himself by getting off the track before being struck. In other *535words, the person may come so suddenly upon the track that he is not seen until too late to stop the train before reaching him, or to slacken the speed so as to avoid injuring him, yet, if warned of the approach of the train, he might have time to get out of the way of danger; and the duty enjoined upon the trainmen is not only to use all means at hand to stop the train or car, but to resort to all preventive means known •to prudent and skillful trainmen to avoid injury, and which would, under some circumstances, require a warning. As to when the warning should or should not be given, or whether the engineer should warn and attempt to stop the train also, or should do all or some of the things, depends largely upon the circumstances of the particular case, and is usually a question for the jury; the test being: Did he resort to all preventive means best calculated to avert injury; that is, do the things which prudent and skillful engineers would have done under similar circumstances? If he had time to stop the train, but giving the warning would interfere with his efforts to stop, the failure to give the warning might be justified, or, if he did not have time to stop the train, the warning should be given, or, if the giving of the warning did not detract from his efforts to- stop the train, he should do both. Did he resort to those means known to prudent and skillful trainmen as were best calculated to avert the injury under the facts and circumstances in the particular case? — L. & N. R. R. Co. v. Young, 153 Ala. 232, 45 South. 238, 16 L. E. A. (N. S.) 301; A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84; L. & N. R. R. Co. v. Holland, 173 Ala. 675, 55 South. 1001.
(2) Charge 1 given for the defendant hypothesized to the exclusion of wanton negligence up to the time of the accident, and instructed a finding for the defend*536ant if the intestate came so- suddenly upon the track that the train could not be stopped, or the speed checked by the use of all the means at hand in time to avoid the injury. If this charge is subject to any criticism,, it is due to the fact that it justifies a verdict for the-defendant solely upon an inability to check or stop the-car before striking the intestate, and pretermits the duty to warn the intestate of the approach of the car, and. did not, therefore, require the motorman to resort to all preventive means to avert the injury, thus in effect, assuming that the warning was given if it could have-been a factor, and this assumption would, no doubt,render the charge objectionable, and the giving of same reversible error, but for the reason that the fact assumed — that is, the warning — was proven without dispute, and Avhich justifies the giving of said charge. The plaintiff’s evidence shows that the danger signal was given. Indeed, the blowing of the danger signal was Avhat the plaintiff largely relies upon to show that the motorman had notice of the intestate’s presence upon the north track. This charge is unlike charges 7 and 8 considered in the Holland Case, supra. Moreover, the refusal of said charges in the Holland Case was simply justified, and the opinion does not indicate that the giving of same would have been reversible error.
Defendant’s given charges 3, 4, and 5 are criticized in the argument as possessing the same vice contended against charge 1. They are not subject to the appellant’s criticism, for the reasons advanced in the above discussion of charge 1.
While charge 6, given for the defendant, may not be unsound as to the principle it asserts, yet it possibly has misleading tendencies Avhich would justify its refusal; but, as this case must be reversed for other *537reasons, we need not determine whether or not the giving of said charge was reversible error.
(3, 4) There was no error in refusing plaintiffs requested charge 3. It was argumentative, and invaded the province of the jury.
(5, 6) The fact that the brakes on the car were defective at the time of the accident ivas a factor for the jury in determining whether or not the motorman was guilty of wanton misconduct in running a car at the rate of speed testified to by some of the witnesses at a. place ivhere there was evidence showing that the track was used with frequency by quite a number of people, provided, of course, the said motorman knew at the time of the defective condition of the brake. Certainly proof of the condition of the brake at the time of the accident was the proper inquiry; but the winess Thomas testified that the brake was not only defective at the time, but had always been so since they got the car, and the fact that it was defective during the first half of the year in which the intestate was killed not only corroborated the said Thomas, but tended to show that the defect had existed so long a time as to bring notice to this motorman, who had operated the car for months, of the existence of the defect at the time of the accident. The trial court therefore erred in not letting the witness. Rowell state whether or not the brake ivas defective when he ran the' car during the first half of the year 1912. Nor can we say that the failure of the plaintiff to get the benefit of this evidence was not injurious, as suggested by appellee’s counsel in brief, upon the idea that it was merely cumulative to the evidence of Thomas, as Thomas was flatly contradicted by the defendant’s witness Dial, who testified that there was nothing wrong with the brakes during the year 1912. The witness Thomas had also been contradicted by *538proof of his previous testimony on a former trial, and it may have been of great importance to the plaintiff to have had this witness corroborated as to that feature of the evidence.
(7) The trial court also erred in permitting the defendant to prove that other cars usually went at the same rate of speed as that one was going. This fact did not make it necessarily right for this car to gn as it did; as the others may have been going too fast when passing this point. Moreover, they may have been equipped with good brakes and the plaintiff’s evidence showed that the brake upon the car in question was defective, and a car with defective brakes might not be justified in going as fast as one with good ones;
(8) The effect and tendency of the remarks of plaintiff’s counsel, which were excluded upon objection of defendant, was to make capital of the defendant’s failure to use the motorman, Hardy, as a witness, and the same were properly excluded. — Forman v. State, 190 Ala. 22, 67 South. 583; Hutcherson v. State, 165 Ala. 16, 50 South. 1027, 138 Am. St. Rep. 17.
The other assignments of error not discussed in this opinion have been considered, and the trial court committed no reversible error in these rulings.
For the error pointed out, the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
McClellan, Sayre, and de Grafeenried, JJ,. concur.