MERRILL, Justice.
This appeal results from a verdict against appellant for $75,000, which was subsequently reduced to $60,000, pursuant to an order of the trial court and a remittitur filed by appellee.
The suit grew out of a collision of appellant’s locomotive with the rear end of [205]*205appellee’s automobile which had crossed the tracks of appellant at a crossing (not public), but the rear bumper had not cleared the tracks and the automobile was struck but not overturned. Appellee received serious injuries. The cause was submitted to the jury on a count charging subsequent negligence and a count charging wantonness.
Since the judgment must be reversed, we discuss only three assignments of error. No. 76 charges that the trial court erred in overruling the demurrer to Count Two, as amended, the wanton count. During the process of pleading, appellee amended Count Two “By striking from Count 2 of the Complaint as last amended the first paragraph thereof and substituting in lieu thereof the following: * * * and as a proximate result thereof plaintiff was injured and damaged as follows :”. Appellant contends that the failure to continue to a period rather than stopping the amendment at the colon eliminated from the complaint all averments of injuries or damages. The record shows that the original complaint contains an indention following the colon, and while it might not be grammatically correct to say that a new paragraph was begun, we think the criticism to be hypercritical and, therefore, hold that the count was sufficient.
Assignments of error 71 and 72 charge that the court erred in overruling objections to closing argument by counsel for appellee. The record shows the following to have occurred:
“Mr. Emond: And let me tell you something, gentlemen of the jury, while you are seeking the truth, the voice of the engineer is silent and mute. The engineer that they employed and under whose direction that engine was, gentlemen of the jury, the man with the hand on the throttle is strangely absent.
“Mr. Bibb: We object, if the Court please to the propriety of that argument, and counsel making an inference in the argument for the failure to put the testimony of the engineer on the stand; the record shows in the proceedings of this court, and at the start of this trial he took the deposition of the engineer, and he had been in court, and he was in court, and they had subpoenaed him and he was here.
“The Court: I will overrule.
“Mr. Bibb: We except.
“(Whereupon, Mr. Emond resumed argument on behalf of the plaintiff, during which the following occurred:)
“Mr. Emond: But leave him out of the picture. When you go to the jury room, gentlemen of the jury, to decide this case you take the ghost of that engineer, Naish, with you and ask him ‘What did you do to stop that train? Why didn’t you want to tell it? Why are you silent?’ and you have got the answer to this law suit.
“And gentlemen of the jury I say if I was here and presented this case to you and wanted you to have the truth about it, and he was my witness, you would have seen him on the stand.
“Mr. Bibb: We object to the highly improper statement of counsel.
“Mr. Acker: Not only highly improper but improbable.
“Mr. Bibb: Self-serving declaration.
“The Court: The limits of argument on each side the law says are very broad. I will overrule.
“Mr. Bibb: We except.”
The question presented is the right vel non of counsel to comment on the failure of appellant to call the engineer, Naish, as a witness.
Appellee called Peter Henry, the fireman on the diesel locomotive, as his witness. [206]*206Henry testified that the train was traveling toward Birmingham at about 30 miles per hour. The train was in a sharp curve to the right as it approached the crossing. Henry was- sitting at the left front of the locomotive, brakeman Purple was in the middle and engineer Naish on the right side. When they first saw appellee’s automobile, it appeared to- Henry that it was off in the woods and not near the tracks. The engine'er asked Henry if the car was in the clear and Henry replied that he did not know. The engineer raised up from his seat .to .get a better view. As they came on- around the -curve and drew eloper to the crossing, Henry “hollered, 'No, it is not in the clear.’ ” Thereupon, the engineer immediately put'the'brakes on in full emergency. Henry said’ he had been firing for 31'or'32 years and when asked if he knew of a quicker way to stop or slow down an 'engine than tó put the brakes in full emergency; he answered, “that is all of it.”’ He testified that as the train came nearer-the crossing, he could see a white man lying in the front seat and a colored man lying in the back seat, both of' whom apparently were asleep because they were not disturbed by the short blasts of the whistle. After striking the car, the locomotive i stopped about ten car lengths past the crossing.
Henry álso identified some pictures which were taken later from the cab of the locomotive -looking- toward the crossing from the direction in which the train was traveling on the morning of the accident. Exhibit A 'was a picture taken from the fireman’s seat at the point when it was just.possible to see an object placed w-here- plaintiff’s car was on the date of the accident. Exhibit B showed the view from the engineer’s seat. He also identified pictures taken from his seat and the - engineer’s seat when they could first see that plaintiffs car was close enough to the track to be -in danger and when the brakes were applied in full emergency. Henry testified that the locomotive had been placed for- the pictures by the ■engineer, the brakeman and himself. He also testified on direct examination that the engineer, Naish, was present in court.
In City of Birmingham v. Levens, 241 Ala. 47, 200 So. 888, 891, we said:
“The general rule is when a witness is accessible to both parties, or his evidence would be cumulative, neither party can comment on his absence. Coosa Portland Cement Co. v. Crankfield, 202 Ala. 369, 80 So. 451; Louisville & Nashville R. R. Co. v. Sullivan Timber Co., 126 Ala. 95, 27 So. 760.”
This rule was cited in Cooper v. Grubbs, 262 Ala. 519, 80 So.2d 284, where many other Alabama cases are discussed, and where it was ' held that comments by defendant’s counsel concerning the failure of the husband and wife to call a doctor as a witness was improper and was sufficient grounds for granting a new trial. The rule is also subject to some exceptions or refinements. As stated in Carter v. Chambers, 79 Ala. 223, and followed many times:
“ * * * There is a rule, and a just one, that if a party has a witness possessing peculiar knowledge of the transaction, and supposed to be favorable to him, and fails to produce such witness when he has the means of doing so, this, in the absence of all explanation, is ground of suspicion against him that such better informed testimony would make against him. McGar v. Adams, 65 Ala. 106; Kilgore v. State, 74 Ala. 1; Fincher v. State, 58 Ala. 215; 1 Greenl.Ev. § 82. This duty, however, rests with special force on the party who has the burden of proof; most generally on the plaintiff.
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MERRILL, Justice.
This appeal results from a verdict against appellant for $75,000, which was subsequently reduced to $60,000, pursuant to an order of the trial court and a remittitur filed by appellee.
The suit grew out of a collision of appellant’s locomotive with the rear end of [205]*205appellee’s automobile which had crossed the tracks of appellant at a crossing (not public), but the rear bumper had not cleared the tracks and the automobile was struck but not overturned. Appellee received serious injuries. The cause was submitted to the jury on a count charging subsequent negligence and a count charging wantonness.
Since the judgment must be reversed, we discuss only three assignments of error. No. 76 charges that the trial court erred in overruling the demurrer to Count Two, as amended, the wanton count. During the process of pleading, appellee amended Count Two “By striking from Count 2 of the Complaint as last amended the first paragraph thereof and substituting in lieu thereof the following: * * * and as a proximate result thereof plaintiff was injured and damaged as follows :”. Appellant contends that the failure to continue to a period rather than stopping the amendment at the colon eliminated from the complaint all averments of injuries or damages. The record shows that the original complaint contains an indention following the colon, and while it might not be grammatically correct to say that a new paragraph was begun, we think the criticism to be hypercritical and, therefore, hold that the count was sufficient.
Assignments of error 71 and 72 charge that the court erred in overruling objections to closing argument by counsel for appellee. The record shows the following to have occurred:
“Mr. Emond: And let me tell you something, gentlemen of the jury, while you are seeking the truth, the voice of the engineer is silent and mute. The engineer that they employed and under whose direction that engine was, gentlemen of the jury, the man with the hand on the throttle is strangely absent.
“Mr. Bibb: We object, if the Court please to the propriety of that argument, and counsel making an inference in the argument for the failure to put the testimony of the engineer on the stand; the record shows in the proceedings of this court, and at the start of this trial he took the deposition of the engineer, and he had been in court, and he was in court, and they had subpoenaed him and he was here.
“The Court: I will overrule.
“Mr. Bibb: We except.
“(Whereupon, Mr. Emond resumed argument on behalf of the plaintiff, during which the following occurred:)
“Mr. Emond: But leave him out of the picture. When you go to the jury room, gentlemen of the jury, to decide this case you take the ghost of that engineer, Naish, with you and ask him ‘What did you do to stop that train? Why didn’t you want to tell it? Why are you silent?’ and you have got the answer to this law suit.
“And gentlemen of the jury I say if I was here and presented this case to you and wanted you to have the truth about it, and he was my witness, you would have seen him on the stand.
“Mr. Bibb: We object to the highly improper statement of counsel.
“Mr. Acker: Not only highly improper but improbable.
“Mr. Bibb: Self-serving declaration.
“The Court: The limits of argument on each side the law says are very broad. I will overrule.
“Mr. Bibb: We except.”
The question presented is the right vel non of counsel to comment on the failure of appellant to call the engineer, Naish, as a witness.
Appellee called Peter Henry, the fireman on the diesel locomotive, as his witness. [206]*206Henry testified that the train was traveling toward Birmingham at about 30 miles per hour. The train was in a sharp curve to the right as it approached the crossing. Henry was- sitting at the left front of the locomotive, brakeman Purple was in the middle and engineer Naish on the right side. When they first saw appellee’s automobile, it appeared to- Henry that it was off in the woods and not near the tracks. The engine'er asked Henry if the car was in the clear and Henry replied that he did not know. The engineer raised up from his seat .to .get a better view. As they came on- around the -curve and drew eloper to the crossing, Henry “hollered, 'No, it is not in the clear.’ ” Thereupon, the engineer immediately put'the'brakes on in full emergency. Henry said’ he had been firing for 31'or'32 years and when asked if he knew of a quicker way to stop or slow down an 'engine than tó put the brakes in full emergency; he answered, “that is all of it.”’ He testified that as the train came nearer-the crossing, he could see a white man lying in the front seat and a colored man lying in the back seat, both of' whom apparently were asleep because they were not disturbed by the short blasts of the whistle. After striking the car, the locomotive i stopped about ten car lengths past the crossing.
Henry álso identified some pictures which were taken later from the cab of the locomotive -looking- toward the crossing from the direction in which the train was traveling on the morning of the accident. Exhibit A 'was a picture taken from the fireman’s seat at the point when it was just.possible to see an object placed w-here- plaintiff’s car was on the date of the accident. Exhibit B showed the view from the engineer’s seat. He also identified pictures taken from his seat and the - engineer’s seat when they could first see that plaintiffs car was close enough to the track to be -in danger and when the brakes were applied in full emergency. Henry testified that the locomotive had been placed for- the pictures by the ■engineer, the brakeman and himself. He also testified on direct examination that the engineer, Naish, was present in court.
In City of Birmingham v. Levens, 241 Ala. 47, 200 So. 888, 891, we said:
“The general rule is when a witness is accessible to both parties, or his evidence would be cumulative, neither party can comment on his absence. Coosa Portland Cement Co. v. Crankfield, 202 Ala. 369, 80 So. 451; Louisville & Nashville R. R. Co. v. Sullivan Timber Co., 126 Ala. 95, 27 So. 760.”
This rule was cited in Cooper v. Grubbs, 262 Ala. 519, 80 So.2d 284, where many other Alabama cases are discussed, and where it was ' held that comments by defendant’s counsel concerning the failure of the husband and wife to call a doctor as a witness was improper and was sufficient grounds for granting a new trial. The rule is also subject to some exceptions or refinements. As stated in Carter v. Chambers, 79 Ala. 223, and followed many times:
“ * * * There is a rule, and a just one, that if a party has a witness possessing peculiar knowledge of the transaction, and supposed to be favorable to him, and fails to produce such witness when he has the means of doing so, this, in the absence of all explanation, is ground of suspicion against him that such better informed testimony would make against him. McGar v. Adams, 65 Ala. 106; Kilgore v. State, 74 Ala. 1; Fincher v. State, 58 Ala. 215; 1 Greenl.Ev. § 82. This duty, however, rests with special force on the party who has the burden of proof; most generally on the plaintiff. The defendant may, and frequently does, rest his defense on what he considers the weakness of his adversary’s testimony, as he interprets it, or on the exculpatory features it presents. He is under no obligation to aid the plaintiff in making out his case. McGar v. Adams, supra. * * *”
[207]*207In Louisville & Nashville R. Co. v. Sullivan Timber Co., 126 Ala. 95, 27 So. 760, 762, this court said:
“ * * * The failure of the defendant to produce as a witness the fireman of the engine used by the defendant, and alleged to have occasioned the fire, the engineer in charge of the engine having been examined by defendant as a witness, was not, under all the authorities, a proper subject of comment. Brock v. State, 123 Ala. 24, 26 So. 329; Coppin v. State, 123 Ala. 58, 26 So. 333, and authorities cited.”
In Manley v. Birmingham Ry., Light & Power Co., 191 Ala. 531, 68 So. 60, 63, Chief Justice Anderson wrote:
“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 So. 583; Hutcherson v. State, 165 Ala. 16, 50 So. 1027, 138 Am.St.Rep. 17.”
Again, in Bradford v. Birmingham Electric Co., 227 Ala. 285, 149 So. 729, 732, the court said:
“ * * * Nor must we be understood as intimating that, if proper exception had been reserved, there was, in fact, error in refusing to permit the plaintiff to comment upon the fact that the conductor, though in court, was not examined by the plaintiff. The conductor was not a party to the suit, and he was equally available to the plaintiff as a witness as he was to defendant. Manley v. Birmingham Ry., Light & Power Co., 191 Ala. 531, 538, 68 So. 60; Louisville & N. R. R. Co. v. Sullivan Timber Co., 126 Ala 95, 27 So. 760.”
Applying these pronouncements to the facts in the instant case, we are constrained to hold that the trial court erred in overruling the objections to the closing argument.
The record shows that the engineer had formerly been examined by deposition, that appellee had access to it, that the engineer was present in court and that he had been subpoenaed by the appellee. He had formerly been a party defendant, but had been stricken as such prior to the trial. Certainly, he was accessible to both parties. The fireman, Henry, testified to all that occurred from the first sighting of the automobile at the crossing, and to every act that the engineer performed. His testimony was sufficient to raise an inference that all that could be done after the discovery of the peril was done. Plis testimony also showed that the engineer agreed with him as to the distances when they first saw and later discovered that the car was too near the crossing, because the locomotive was placed at those distances by agreement of the three men in the cab. It is apparent that the engineer’s testimony would have been cumulative, and it was the defendant’s right to submit that aspect of the case to the jury on the testimony of the fireman, who was appellee’s witness and was vouched for by appellee, and not call the engineer as a witness when his evidence would only have been cumulative. There was no indication that the engineer possessed some peculiar knowledge that would be so detrimental to defendant that he was not called as a witness by the defendant.
Moreover, there was no conflict in the evidence as to the operation of the locomotive or the actions of the engineer. As noted in Hinton & Sons v. Strahan, 266 Ala. 307, 96 So.2d 426, the rule in Alabama is different when commenting on the failure of a party to testify than on the failure to call a witness. Much more latitude is allowed when a party fails to testify. Even though it is generally held that “the failure of a party to a suit, when present at the trial, to testify as to a fact in issue, furnished legitimate ground for comment in argument to the jury by the opposite party”, it was pointed out that in Mc[208]*208Gar v. Adams, 65 Ala. 106, “ * * * this court held that a party’s failure to testify merely to support uncontradicted evidence, favorable to him, which his adversary introduces, did not give rise to the presumption of the imputation of withholding evidence. In other words, it was unnecessary for the party to testify.” In that case the court said:
“ * * * But we do affirm that a presumption can not, and ought not, to be indulged against a party, who does not introduce and examine himself as a witness, merely to support the uncontradicted evidence, favorable to him, which his adversary introduces. Without subjecting himself to the imputation of withholding evidence, he may properly rely on that his adversary introduces, when it is without contradiction.”
We think the same rule is applicable when the testimony of a witness, not a party, would only support “the uncontradicted evidence, favorable to him, which his adversary introduces.”
In support of the ruling of the trial court, appellee cites the following cases: Carter v. Chambers, 79 Ala. 223; Central of Georgia R. Co. v. Ellison, 199 Ala. 571, 75 So. 159; Alabama Power Co. v. Talmadge, 207 Ala. 86, 93 So. 548; Waller v. State, 242 Ala. 1, 4 So.2d 911; United States Steel Co. v. Butler, 260 Ala. 190, 69 So.2d 685. We have carefully considered these cases and are persuaded that there is no conflict in what they hold and in what we have here held.
The judgment of the lower court is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.