[1] Count 2 of the complaint was good. against the grounds of demurrer. Counts claiming damages for wanton or willful acts, are sufficient when they allege that the injury was wantonly or willfully inflicted by running a train, car, or engine against plaintiff or his property, and it is not essential that they set out the evidence necessary to show that the given act was wanton or willful. Birmingham R., L. & P. Co. v. Johnson, 183 Ala. 355, 61 South. 79; Southern R. R. Co. v. Weatherlow, 153 Ala. 171, 44 South. 1019; Martin’s Case, 117 Ala. 367, 28 South. 231; Burgess’ Case, 114 Ala. 587, 22 South. 169; Southern R. R. Co. v. Hyde, 183 Ala. 346, 61 South. 77.
[2] The demurrer to pleas A and B should have been sustained. Pleas of contrlbutox-y negligence do not constitute legal justification for the intentional or wanton injury ox-negligence of the defendant.
[3] There was no error in sustaining defendant’s objection to the question propounded to the witness J. M. Bagley, “You say that all indications showed titiiat it was a
[4, 5] We are of the opinion that the trial court was in error in giving the general affirmative charge at the request of the defendant. While the testimony is without conflict in many respects, yet there were diverging tendencies which should have been left to the jury to pass upon. The general affirmative charge should never be given whenever there is any evidence or a reasonable inference in opposition to the same. John v. Birmingham Realty Co., 172 Ala. 604, 55 South. 801; Birmingham Light & Power Co. v. Livingston, 144 Ala. 316, 39 South. 374; Birmingham L. & P. Co. v. Williams, 158 Ala. 381, 48 South. 93.
The opinion of the Court of Appeals in the case of Birmingham R., L. & P. Co. v. Camp, 2 Ala. App. 649, 57 South. 50, is to us conclusive of the proposition that the trial court was in error. If there is any evidence which would support an inference ¿hat would hinder the defendant’s right to recover, an instruction to find for the defendant if the jury believed the evidence should not be given. W. U. Tel. Co. v. Louisell, 161 Ala. 231, 50 South. 87.
If there is any evidence which tends to establish the plaintiff’s cause, the court should not withdraw the case from the jury or direct a verdict. It is not for the court to judge the sufficiency of the evidence, or to decide which of conflicting tendencies of the evidence should be adopted by the jury. Tobler v. Pioneer Mfg. Co., 166 Ala. 517, 52 South. 86; Amerson v. Corona Coal & Iron Co., 194 Ala. 175, 69 South. 601.
The reporter will set out fully all the facts in the case.
. The judgment of the circuit court will be reversed ahd remanded.
Reversed and remanded.