ANDERSON, J.
That the plaintiff’s intestate was guilty of negligence in being at the place where he was killed, whether asleep or awake, there can be no doubt. Nor can he be relieved from such an imputation upon the theory that he had the right to anticipate that the train would stop before reaching him, because of the placing by him of the flag and torpedoes between himself and the expected train, if such was the case, but as to which point there was a sharp conflict in the evidence. The killing was not at a point where the engineer was required to keep a lookout, and the intestate had no right to anticipate that the flag would be discovered in time to stop the train before it reached him. Indeed, he evidently realized that the engineer would not be on the lookout for the flag, as it was shown by some of the evidence that he placed one of the torpedoes beyond the flag, with the evident idea that the explosion of same would attract notice and cause a discovery of said flag. Certainly he could not expect the explosion [277]*277of the torpedoes to stop the train before it reached him; for, conceding that they were placed between himself and the train, the undisputed evidence shows that the train could not have been stopped within the space between the torpedoes and where the intestate placed himself on the track. Therefore the plaintiff could not recover because of any initial negligence; for, if there was any, the intestate’s contributory negligence was a complete defense to same, and she had to recover upon subsequent negligence, or what is termed the “last clear chance doctrine.”
The rule, as laid down by this court, as well as in other jurisdictions, including England, is that, while the plaintiff’s intestate’s negligence in being on the track would defeat a recovery for antecedent negligence, yet she could recover if defendant’s servants, in charge of the train, became aware of the intestate’s peril in time to avoid running over him by the proper use of preventative means at their command, and negligently failed to resort to such means to conserve his safety, provided the intestate himself was free from negligence after becoming conscious of his danger. — Young v. L. & N. R. R. Co., 153 Ala., 532, 45 South. 238; Central of Ga. R. R. v. Foshee, 125 Ala., 199, 27 South. 1006; L. & N. R. R. v. Brown, 121 Ala. 227, 25 South. 609, and cases there cited. As was also, said, and properly so, in the recent case of L. & N. R. R. v. Young, supra, and in the case of St. Louis R. R. v. Schumacher, 152 U. S. 77, 14 Sup. Ct. 479, 38 L. Ed. 361: the plaintiff cannot recover if his- negligence is not only subsequent to, but concurrent with, the subsequent negligence of the defendant. In order, however, for him to be guilty of subsequent or concurrent negligence, he must have been conscious of his peril at that particular time. The opinion in the case of St. Louis R. R. supra, and which [278]*278is stressed by appjellant’s counsel, expressly declares that, if the plaintiff selected a place where he remained and which he knew to be dangerous, he not only selected a dangerous place, but remained there, conscious of the danger, not only when he assumed the position, but at the time he was injured; and it would doubtless be true, in the case at bar, that if the intestate remained on the track after becoming conscious of the immediate approach of the train, and could have gotten out of the way, but failed to do so, he would have been guilty of negligence subsequent to or concurrent with the subsequent negligence of the defendant’s servants’ if they were guilty of any. But, if for any reason the intestate did not know of the immediate approach of the train, he was not therefore conscious of imminent peril, and would not be guilty of negligence subsequent to or concurrent Avith the negligence of the defendant’s servants arising from a failure on their part to resort to all preventative means to conserve his safety after discovering his peril. It is true Ave have some cases, notably Helton v. Ala., Mid. R. R., 97 Ala., 284 12 South. 284, wherein it was said that contributory negligence can only be overcome by “wantonness or recklessness.” But in those cases the subsequent or “last clear chance” doctrine was not invoked or considered by the court.
There was evidence in the case at bar from which the jury could infer subsequent negligence on the part of the defendant’s servants, and that the intestate was not conscious of his danger subsequent to or concurrent with the said negligence of said 'servants. There was proof that the intestate was sitting on the end of a cross-tie'near the rail; that he could be seen from the crossing some distance, from one-third to one-half mile; and that the engineer kept his eyé on the track from the crossing until the intestate was struck. These facts,' 'however. [279]*279might not require the engineer to stop the train, as he had the right to anticipate that the intestate would get off, until he discovered that he would or could not do so. But there was also evidence that the intestate ivas lying down, and therefore in a perilous position, and, while there was no proof as to how far a man could have been seen lying on the track, there was proof of conditions and surroundings, and it was for the jury to determine whether or not he was seen hy the engineer in time to have stopped the train, even if the intestate was lying down, instead of sitting, as testified to hy the fireman. Eliminating, however, the question of negligence growing out of a failure to stop the train, and conceding, without deciding, for the present, that the defendant’s servants did not negligently fail to stop the train, there is another reason why the defendant was not entitled to the general charge upon the theory that there was no subsequent negligence shown. There was evidence from which the jury could infer that the intestate had fallen asleep, and was not, therefore, conscious of the impending danger, and that a loud blast or blasts of the whistle might have aroused him, and warned him of the approach of the train in time to escape, and which would have required but a slight degree of time and space. Indeed, the engineer admitted seeing him 50 yards off, and evidently concluded that he was in a perilous position, as he attempted to stop, notwithstanding he could not do so before reaching him. If, therefore, he could have resorted to other preventative means, rather than attempting the impossible, it was his duty to have done so. Did not prudence require a loud blast of the whistle, and could the jury not have inferred that it might have caused the intestate to clear the track? There was proof tending to show that the whistle was not blown, and the jury could have inferred that the" fail[280]*280ure to do so was the proximate cause of intestate’s death. We cannot consent to the contention of counsel that blowing of the whistle would have been useless, because of the failure of the torpedoes to arouse the intestate, as this would be a question for the jury, in case the torpedoes were exploded before he was struck, but which fact cannot be assumed, as the engineer said they were placed beyond the intestate, and were not, therefore, exploded until they had passed over him.
The defendant was not entitled to the affirmative charge, upon the theory that the defendant was not, as matter of law, guilty of subsequent negligence, or, if it was, that the intestate was guilty of subsequent or concurrent negligence.
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ANDERSON, J.
That the plaintiff’s intestate was guilty of negligence in being at the place where he was killed, whether asleep or awake, there can be no doubt. Nor can he be relieved from such an imputation upon the theory that he had the right to anticipate that the train would stop before reaching him, because of the placing by him of the flag and torpedoes between himself and the expected train, if such was the case, but as to which point there was a sharp conflict in the evidence. The killing was not at a point where the engineer was required to keep a lookout, and the intestate had no right to anticipate that the flag would be discovered in time to stop the train before it reached him. Indeed, he evidently realized that the engineer would not be on the lookout for the flag, as it was shown by some of the evidence that he placed one of the torpedoes beyond the flag, with the evident idea that the explosion of same would attract notice and cause a discovery of said flag. Certainly he could not expect the explosion [277]*277of the torpedoes to stop the train before it reached him; for, conceding that they were placed between himself and the train, the undisputed evidence shows that the train could not have been stopped within the space between the torpedoes and where the intestate placed himself on the track. Therefore the plaintiff could not recover because of any initial negligence; for, if there was any, the intestate’s contributory negligence was a complete defense to same, and she had to recover upon subsequent negligence, or what is termed the “last clear chance doctrine.”
The rule, as laid down by this court, as well as in other jurisdictions, including England, is that, while the plaintiff’s intestate’s negligence in being on the track would defeat a recovery for antecedent negligence, yet she could recover if defendant’s servants, in charge of the train, became aware of the intestate’s peril in time to avoid running over him by the proper use of preventative means at their command, and negligently failed to resort to such means to conserve his safety, provided the intestate himself was free from negligence after becoming conscious of his danger. — Young v. L. & N. R. R. Co., 153 Ala., 532, 45 South. 238; Central of Ga. R. R. v. Foshee, 125 Ala., 199, 27 South. 1006; L. & N. R. R. v. Brown, 121 Ala. 227, 25 South. 609, and cases there cited. As was also, said, and properly so, in the recent case of L. & N. R. R. v. Young, supra, and in the case of St. Louis R. R. v. Schumacher, 152 U. S. 77, 14 Sup. Ct. 479, 38 L. Ed. 361: the plaintiff cannot recover if his- negligence is not only subsequent to, but concurrent with, the subsequent negligence of the defendant. In order, however, for him to be guilty of subsequent or concurrent negligence, he must have been conscious of his peril at that particular time. The opinion in the case of St. Louis R. R. supra, and which [278]*278is stressed by appjellant’s counsel, expressly declares that, if the plaintiff selected a place where he remained and which he knew to be dangerous, he not only selected a dangerous place, but remained there, conscious of the danger, not only when he assumed the position, but at the time he was injured; and it would doubtless be true, in the case at bar, that if the intestate remained on the track after becoming conscious of the immediate approach of the train, and could have gotten out of the way, but failed to do so, he would have been guilty of negligence subsequent to or concurrent with the subsequent negligence of the defendant’s servants’ if they were guilty of any. But, if for any reason the intestate did not know of the immediate approach of the train, he was not therefore conscious of imminent peril, and would not be guilty of negligence subsequent to or concurrent Avith the negligence of the defendant’s servants arising from a failure on their part to resort to all preventative means to conserve his safety after discovering his peril. It is true Ave have some cases, notably Helton v. Ala., Mid. R. R., 97 Ala., 284 12 South. 284, wherein it was said that contributory negligence can only be overcome by “wantonness or recklessness.” But in those cases the subsequent or “last clear chance” doctrine was not invoked or considered by the court.
There was evidence in the case at bar from which the jury could infer subsequent negligence on the part of the defendant’s servants, and that the intestate was not conscious of his danger subsequent to or concurrent with the said negligence of said 'servants. There was proof that the intestate was sitting on the end of a cross-tie'near the rail; that he could be seen from the crossing some distance, from one-third to one-half mile; and that the engineer kept his eyé on the track from the crossing until the intestate was struck. These facts,' 'however. [279]*279might not require the engineer to stop the train, as he had the right to anticipate that the intestate would get off, until he discovered that he would or could not do so. But there was also evidence that the intestate ivas lying down, and therefore in a perilous position, and, while there was no proof as to how far a man could have been seen lying on the track, there was proof of conditions and surroundings, and it was for the jury to determine whether or not he was seen hy the engineer in time to have stopped the train, even if the intestate was lying down, instead of sitting, as testified to hy the fireman. Eliminating, however, the question of negligence growing out of a failure to stop the train, and conceding, without deciding, for the present, that the defendant’s servants did not negligently fail to stop the train, there is another reason why the defendant was not entitled to the general charge upon the theory that there was no subsequent negligence shown. There was evidence from which the jury could infer that the intestate had fallen asleep, and was not, therefore, conscious of the impending danger, and that a loud blast or blasts of the whistle might have aroused him, and warned him of the approach of the train in time to escape, and which would have required but a slight degree of time and space. Indeed, the engineer admitted seeing him 50 yards off, and evidently concluded that he was in a perilous position, as he attempted to stop, notwithstanding he could not do so before reaching him. If, therefore, he could have resorted to other preventative means, rather than attempting the impossible, it was his duty to have done so. Did not prudence require a loud blast of the whistle, and could the jury not have inferred that it might have caused the intestate to clear the track? There was proof tending to show that the whistle was not blown, and the jury could have inferred that the" fail[280]*280ure to do so was the proximate cause of intestate’s death. We cannot consent to the contention of counsel that blowing of the whistle would have been useless, because of the failure of the torpedoes to arouse the intestate, as this would be a question for the jury, in case the torpedoes were exploded before he was struck, but which fact cannot be assumed, as the engineer said they were placed beyond the intestate, and were not, therefore, exploded until they had passed over him.
The defendant was not entitled to the affirmative charge, upon the theory that the defendant was not, as matter of law, guilty of subsequent negligence, or, if it was, that the intestate was guilty of subsequent or concurrent negligence. Nor did the trial court err in refusing charges 7, 8, 9, 11, 17, and 18. The complaint (count 4) avers that the intestate “was in the service of the defendant and in the discharge of his duty as a flagman, * * * and while plaintiff toas in the discharge of his duty flagging one of defenda/nt’s trains on the road so operated by it * * * (italics ours). The proof not only fails to establish this averment, but showed that he stuck his flag in the ground on the track and assumed a position on the track a considerable distance from the flag. It may be that the averment quoted was needless, under the facts in the case, and that the plaintiff could recover, upon her theory of the facts, whether the intestate was or was not engaged in the discharge of his duty at the time he was killed; but this fact could not cure the variance. The complaint, whether necessary or not, put the defendant on notice that it was being sued for killing the intestate while discharging his duty as a flagman and while flagging the train, and it was not called upon to defend for killing him when not so engaged. Helton v. A. M. R. R. 97 Ala. 284, 12 South. 276; Smith v. Causby, 28 Ala. 655, 65 Am. [281]*281Dec. 372; Southern Railway v. Hundley, 151 Ala. 378, 44 South. 195; Hood v. Pioneer Company, 95 Ala. 461, 11 South. 10; Highland R. R. v. Maddox, 100 Ala. 618, 13 South. 615.
The trial court erred in refusing the general charge, because of this variance, as well as charges 35 and 37, requested by the defendant. Under our system of pleading, the complaint was sufficient to authorize proof of and recover for subsequent negligence. If the servants of the defendant permitted the train to run over or against the intestate, because of primary or secondary negligence, it was nevertheless negligently done, and as averred. — Foshee’s Case, 125 Ala. 199, 27 South. 1006. In the cases cited by counsel for appellant the complaint set up subsequent negligence; but the court in none of them held that it was necessary.
The trial court did not err in refusing charges 7, 20, and 27, requested by the defendant. The intestate may have been killed in “consequence” of his position on the track, yet it was for the jury to determine whether or not defendant’s subsequent negligence was the proximate cause.
The trial court did not err in refusing charge 10, requested by the defendant. It pretermits any subsequent negligence on the part of the defendat’s servants, notwithstanding there was proof tending to show same, and, while it hypothesizes the intestate’s subsequent or concurrent negligence, it fails to postulate a consciousness on his part of the approaching train.
The trial court did not err in refusing charges 25 and 26, which are fully discussed in the first part of the opinion.
Charge 19, requested by the defendant, was too broad as to contributory negligence. It is only contributory negligence that is pleaded that can defeat a recovery [282]*282when proven. — Southern Ry. v. Shelton, 136 Ala. 191, 34 South. 194. The charge in question is predicated on any contributory negligence, whether pleaded or not.
Charges 12, 21, and 22, requested by the defendant, are in the abstract correct. The law contemplates a unanimous verdict, and the charge does not ask a finding for the defendant if any juror is not satisfied, but instructs that there should not be a verdict for the plaintiff. — Grimes v. State, 105 Ala. 86, 17 South. 184; Nevill v. State, 133 Ala. 99, 32 South. 596. It is a fixed rule of law that when issue is taken upon a plea, and there is no special replication thereto, and the plea is proven, the defendant is entitled to a verdict. While these charges assert correct abstract propositions, and the trial court would not be reversed for giving them, we decline to say whether or not the trial court committed reversible error in refusing them, as this case must be reversed upon other points. We are aware that the refusal of similar charges has been held to be reversible error and that charges are properly referable to the issue presented by the pleading. But we think that charges of this character should contain the substance of the defensive matter pleaded, and not require the jury to carefully scrutinize the pleading, and compare the pleas with the evidence as heard by them, and then determine which pleas have or have not been proven. In the case át bar there are 12 special pleas, and the result, under these charges, would be to require the jury to examine and consider each of them separately in order to ascertain if any of them had been proven. Charges should be so framed as to enable the jury to pass upon the issues, by examining the charge and applying the evidence to same, and not so as to require them to resort to an examination of the pleading. — Birmingham R. R. Co., v. Hayes, 153 Ala. 178, 44 South. 1032.
[283]*283Under the view, taken by ns, that the plaintiff could not recover for primary negligence, if any there was, and that the intestate was guilty of negligence per se in being on the track, it is useless to discuss the exception to rulings on the examination of the witness Hop-wood.
The plaintiff was not confined to proof of what the intestate was actually earning at the time of his death, and there was no error in permitting proof of what he earned as a baggage master, just prior to his death, as there was no proof that he had permanently abandoned such calling or had become incapacitated from following same. — Ala. Steel & Wire Co. v. Griffin, 149 Ala. 423, 42 South. 1034, and cases there cited. For the same reason, there was no error in refusing charge 16, requested by the defendant.
The court erred in permitting the plaintiff to ask the witness Murphy, “In what distance could you stop your train at 15 miles, with such a track and such appliances as you had that day?” It hypothesized no facts in the case, as the evidence shows that the train was going 18 or 20 miles per hour. Nor was it asked to test the skill or knowledge of the witness as an expert.
The judgment of the city court is reversed, and the cause is remanded.
Reversed and remanded.
Tyson, C. J., and Dowdell and McClellan, JJ., concur.