DOWDELL, C. J.
This case was tried in the court below on the first, second, and fifth counts of the complaint. On the former appeal the fifth count was held to be good, and not subject to demurrers; but the first and second counts were held to be subject to demurrer. [181]*181See 171 Ala. 274, 55 South. 185. Since the remandment of the cause, the first and second counts have been amended to conform to the ruling of this court on the former appeal; and, folloAving Avhat Avas there said, the loAver court on the last trial properly overruled the demurrers to the counts as amended.
Assignments of error from 3 to 8, inclusive, relate to the rulings of the trial court on the admission of evidence. The purpose of the evidence was the impeachment of the witness Hardy on a material question, namely, the witness’ knowledge of the perilous position of the plaintiff at the time of the alleged injury. This witness had testified for the defendant, on his direct examination, to a want of knowledge on his part of the plaintiff’s being under the car, and the tendency of the evidence introduced was to contradict this statement, and hence was of an impeaching character. There was other evidence on the part of the plaintiff, open to inference by the jury of a knowledge by Hardy of the Avhereabouts of the plaintiff at and before the time the cars were moved back, resulting in the injury to the plaintiff. The evidence was not objectionable on the theory, as contended by counsel for appellant, of binding the defendant by a subsequent declaration of the agent, and therefore the authorities cited are not in point.
The case of Tanner’s Ex’r v. Louisville & Nashville Railroad Co., 60 Ala. 621, cited by appellant, is opposed to the contention of counsel, and is an authority in point supporting what we have said. See, also, A. G. S. R. R. Co. v. Bonner, 39 South. 620.
The plaintiff was injured while in the performance of his duty as an employee of the defendant in weighing cars. It was in the line of his duty, while so engaged, to assist in placing the car on the scales to be [182]*182weighed; and it was while so engaged, in assisting to place the car on the scales, that the injury complained of occurred. The car to be weighed had been pushed upon the scales, which were between the rails of the track, by a switching engine, and had been uncoupled and disconnected from the engine and the engine and the other cars attached thereto had been removed some distance away — about two car lengths — from the car in question. In placing the car on the scales with the engine, one end of the car was pushed slightly off of, or beyond, the scales, about six or seven inches, so that it became necessary, in order to weigh it, to push or roll it back, and this was attempted to be done by hand and Avithout the aid of the engine. In the effort to so move the car, Hardy, the yardmaster, and one Martin, were pushing at the end of the car next to the detached engine, while plaintiff was at the other or far end. The plaintiff was under the end of the car, pushing against the wheel, and Avas so doing in order to render more effective service in moving the car. As stated by the witness Hardy (transcript, page 42), “one pushing the car would be able to push more by pushing the wheel.”
The doctrine that a railroad track is a dangerous place, under the circumstances in the instant case, is without application; and the authorities cited by counsel, we think, are not in point. The car was detached from the engine for the purpose of being weighed, and in that condition the position taken by the plaintiff, in assisting to push the car on the scales, Avas not per se dangerous, and cannot be affirmed as matter of law negligence. It could become dangerous only by moving the engine against the car. The undisputed evidence showed that Hardy was defendant’s yardmaster, and had superintendence and control of the yards, and [183]*183of all the employees in the yards, including the plaintiff. The switch engine and crew were under his superintendence and control, and the movements- of the engine subject to Ms order and direction.
There was evidence tending to prove that the engine was run back against the car, by the order and direction of Hardy, without notice or warning to the plaintiff, and under all of the evidence it was open to the jury to infer that Hardy had knowledge, at the time, of plaintiff’s whereabouts and position.
It was Hardy’s duty, in Ms superintendence and control of the plaintiff, and of the work being done at the time, to warn and notify the plaintiff, before giving the direction for the engine to move, that the same would be done, and the plaintiff had a right to assume that his superintendent would do his duty. The case is not one of an employee’s presuming that a coemployee will do his duty. It is more. Hardy was the plaintiff’s superintendent, and was in superintendence and control of the plaintiff, and of the work being done.
The facts in the Roach Case, 110 Ala. 271, 20 South. 132, cited and relied on by counsel, were different from the facts in the case before us. We are of the opinion that the trial court properly refused the general affirmative charge, requested by the defendant, as to the whole complaint, and the several counts, and properly submitted the question of contributory negligence to the jury.
It is urged that there is no evidence tending to support the fifth count, which was drawn under the second clause of the fourth subdivision of the employer’s liability statute (section 3910 of the Code), and this, upon the theory that there is no evidence that the master gave the particular instruction alleged in the complaint, or, in other words, no evidence of corporate ac[184]*184tion in the giving of the particular instruction which resulted in the injury. Hardy was shown to be yardmaster, with general superintendence intrusted to him over the work being done; and we think there can be no doubt of his authority, as such, to give the particular instruction alleged, in the carrying out of which the injury resulted; and any negligence of his in giving the instruction resulting in injury to the servant, would fix a liability upon the master.
There was no error in the refusal to give written charge 8, requested by the defendant. As we have said, it was inferable by the jury, from all the evidence, that Hardy knew of the plaintiff’s position under the car, before the signal was given to move back and couple to the car; and it was his duty, in the exercise of due care, to notify the plaintiff of his purpose to signal the engine to move back and couple to the car, and, failing in this, he was negligent, and cannot escape liability upon the idea of want of actual knowledge of plaintiff’s position under the car at the time the signal was given to move the engine. If Hardy knew of plaintiff’s position, after the signal was given, and “failed to notify or warn plaintiff that said engine was being propelled against said car,” he was guilty of negligence, for which the defendant would be liable; and this was an issue under the second count, and in this respect the charge was misleading and bad.
Written charge 11 was of a misleading tendency, and was therefore properly refused. This charge in a way ignored the issue of the failure to notify and warn, and was calculated to lead the jury to believe that Hardy must have been in the act of moving the. car himself.
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DOWDELL, C. J.
This case was tried in the court below on the first, second, and fifth counts of the complaint. On the former appeal the fifth count was held to be good, and not subject to demurrers; but the first and second counts were held to be subject to demurrer. [181]*181See 171 Ala. 274, 55 South. 185. Since the remandment of the cause, the first and second counts have been amended to conform to the ruling of this court on the former appeal; and, folloAving Avhat Avas there said, the loAver court on the last trial properly overruled the demurrers to the counts as amended.
Assignments of error from 3 to 8, inclusive, relate to the rulings of the trial court on the admission of evidence. The purpose of the evidence was the impeachment of the witness Hardy on a material question, namely, the witness’ knowledge of the perilous position of the plaintiff at the time of the alleged injury. This witness had testified for the defendant, on his direct examination, to a want of knowledge on his part of the plaintiff’s being under the car, and the tendency of the evidence introduced was to contradict this statement, and hence was of an impeaching character. There was other evidence on the part of the plaintiff, open to inference by the jury of a knowledge by Hardy of the Avhereabouts of the plaintiff at and before the time the cars were moved back, resulting in the injury to the plaintiff. The evidence was not objectionable on the theory, as contended by counsel for appellant, of binding the defendant by a subsequent declaration of the agent, and therefore the authorities cited are not in point.
The case of Tanner’s Ex’r v. Louisville & Nashville Railroad Co., 60 Ala. 621, cited by appellant, is opposed to the contention of counsel, and is an authority in point supporting what we have said. See, also, A. G. S. R. R. Co. v. Bonner, 39 South. 620.
The plaintiff was injured while in the performance of his duty as an employee of the defendant in weighing cars. It was in the line of his duty, while so engaged, to assist in placing the car on the scales to be [182]*182weighed; and it was while so engaged, in assisting to place the car on the scales, that the injury complained of occurred. The car to be weighed had been pushed upon the scales, which were between the rails of the track, by a switching engine, and had been uncoupled and disconnected from the engine and the engine and the other cars attached thereto had been removed some distance away — about two car lengths — from the car in question. In placing the car on the scales with the engine, one end of the car was pushed slightly off of, or beyond, the scales, about six or seven inches, so that it became necessary, in order to weigh it, to push or roll it back, and this was attempted to be done by hand and Avithout the aid of the engine. In the effort to so move the car, Hardy, the yardmaster, and one Martin, were pushing at the end of the car next to the detached engine, while plaintiff was at the other or far end. The plaintiff was under the end of the car, pushing against the wheel, and Avas so doing in order to render more effective service in moving the car. As stated by the witness Hardy (transcript, page 42), “one pushing the car would be able to push more by pushing the wheel.”
The doctrine that a railroad track is a dangerous place, under the circumstances in the instant case, is without application; and the authorities cited by counsel, we think, are not in point. The car was detached from the engine for the purpose of being weighed, and in that condition the position taken by the plaintiff, in assisting to push the car on the scales, Avas not per se dangerous, and cannot be affirmed as matter of law negligence. It could become dangerous only by moving the engine against the car. The undisputed evidence showed that Hardy was defendant’s yardmaster, and had superintendence and control of the yards, and [183]*183of all the employees in the yards, including the plaintiff. The switch engine and crew were under his superintendence and control, and the movements- of the engine subject to Ms order and direction.
There was evidence tending to prove that the engine was run back against the car, by the order and direction of Hardy, without notice or warning to the plaintiff, and under all of the evidence it was open to the jury to infer that Hardy had knowledge, at the time, of plaintiff’s whereabouts and position.
It was Hardy’s duty, in Ms superintendence and control of the plaintiff, and of the work being done at the time, to warn and notify the plaintiff, before giving the direction for the engine to move, that the same would be done, and the plaintiff had a right to assume that his superintendent would do his duty. The case is not one of an employee’s presuming that a coemployee will do his duty. It is more. Hardy was the plaintiff’s superintendent, and was in superintendence and control of the plaintiff, and of the work being done.
The facts in the Roach Case, 110 Ala. 271, 20 South. 132, cited and relied on by counsel, were different from the facts in the case before us. We are of the opinion that the trial court properly refused the general affirmative charge, requested by the defendant, as to the whole complaint, and the several counts, and properly submitted the question of contributory negligence to the jury.
It is urged that there is no evidence tending to support the fifth count, which was drawn under the second clause of the fourth subdivision of the employer’s liability statute (section 3910 of the Code), and this, upon the theory that there is no evidence that the master gave the particular instruction alleged in the complaint, or, in other words, no evidence of corporate ac[184]*184tion in the giving of the particular instruction which resulted in the injury. Hardy was shown to be yardmaster, with general superintendence intrusted to him over the work being done; and we think there can be no doubt of his authority, as such, to give the particular instruction alleged, in the carrying out of which the injury resulted; and any negligence of his in giving the instruction resulting in injury to the servant, would fix a liability upon the master.
There was no error in the refusal to give written charge 8, requested by the defendant. As we have said, it was inferable by the jury, from all the evidence, that Hardy knew of the plaintiff’s position under the car, before the signal was given to move back and couple to the car; and it was his duty, in the exercise of due care, to notify the plaintiff of his purpose to signal the engine to move back and couple to the car, and, failing in this, he was negligent, and cannot escape liability upon the idea of want of actual knowledge of plaintiff’s position under the car at the time the signal was given to move the engine. If Hardy knew of plaintiff’s position, after the signal was given, and “failed to notify or warn plaintiff that said engine was being propelled against said car,” he was guilty of negligence, for which the defendant would be liable; and this was an issue under the second count, and in this respect the charge was misleading and bad.
Written charge 11 was of a misleading tendency, and was therefore properly refused. This charge in a way ignored the issue of the failure to notify and warn, and was calculated to lead the jury to believe that Hardy must have been in the act of moving the. car himself.
Written charges 16 and G-, refused to the defendant, were asked as to the complaint as a whole. It is insisted in argument that these charges should have been [185]*185given, upon the theory of a variance between the allegations and the proof. It is argued that the complaint alleged actual knowledge on the part of Hardy of the plaintiff’s position of peril under or behind the car. This may be so as to the averments of counts 1 and 2, but is not true as to the averments of count 5. There was no error in refusing these charges.
Under the evidence in this case it was not negligence per se for the plaintiff to take hold of the wheel of the car, in the way in which he did, in assisting to move the car onto the scales, nor was it an unnecessary act. There was evidence tending to show that this was a more effective way than pushing with his hands and shoulder against the side of the car. Charges 19 and 20, requested by the defendant, were therefore properly refused.
As the case was finally submitted to the jury, there was no pretense of any negligence on the part of any one except Hardy, and the trial court Should have given charge C, as requested by the defendant, and its refusal constitutes reversible error.
What we have already said is sufficient to condemn charge I, requested by the defendant. “Each count of the complaint” did not aver knowledge on the part of Hardy of plaintiff’s perilous position, as contended by counsel.
For the error pointed out, the judgment must be reversed, and the cause remanded.
Reversed and remanded.
All the Justices concur.