ANDERSON, J.
The intestate being a trespasser on the defendant’s track at the time he was run over or against, and at a point where the defendant owed him no duty to keep a lookout, the defendant’s servants owed him only the duty of preventing the injury, if they could do so, after discovering his peril on the track, and after becoming aware that he could not or would not extricate himself therefrom. — Southern R. Co. v. Gullatt, 150 Ala. 318, 43 South. 577; Southern R. Co. v. Bush, 122 Ala, 470, 26 South. 168. Therefore, the complaint would not be good after showing that the intestate was a trespasser unless it charged willful or wanton misconduct or negligence subsequent to a discovery of peril. — Birmingham. R. Co. v. Jones, 153 Ala. 168, 45 South. 177. We do not understand the authorities to hold that the only duty owing a trespasser is not to wilfully or wantonly injure him, but they also permit a recovery for subsequent negligence as well — that is, for a. negligent failure to use preventative means to avert [309] injury after a discovery of peril, and after a knowledge that the trespasser cannot extricate himself in time to avoid being injured — notwithstanding the act or omission of the servants in charge of the train did not amount to wilful misconduct or wanton negligence. It is true we have authorities, as noticed in section 414, p. 636, vol. 4, Mayfield’s Digest, which in effect hold that a complaint which shows that the plaintiff was a trespasser when injured is bad on demurrer if it fails to aver wanton or wilful misconduct. But these -cases were decided before the doctrine of subsequent negligence had gained much footing in this state, and the negligence there charged was original or initiative negligence as distinguished from subsequent negligence or negligence after a discovery of peril. We think the true rule as testing the sufficiency of a complaint, is that when simple negligence only is charged — that is, initial negligence — it should bring the plaintiff within the protection of the rule and show that he was not a trespasser. —Holland v. L. & N. R. R. Co., 164 Ala. 73, 51 South. 366; Gadsden R. R. Co. v. Julian, 133 Ala. 373, 32 South. 135. Oin the other hand, although the injured party was a trespasser when injured, and this fact is set out in the complaint, it would not be subject to demurrer if it charged that the injury was wilfully or wantonly inflicted, or that it was due to negligence subsequent to a discovery of peril, and which last fact is charged in the only count in the present complaint that went to the jury — count 1. Count 1 does not charge wanton or wilful misconduct, but- charges a mere negligent failure to prevent the injury after a discovery of peril. It does charge that defendant’s servants knew of intestate’s peril, and knew that he could not extricate himself or avoid being injured, but it does not charge that they then wilfully run over or against- him, or that they wan[310] tonly neglected to discharge the duties required in order to avoid running over or against him. The complaint did not charge wanton or wilful misconduct.— L. & N. R. R. Co. v. Brown, 121 Ala. 226, 25 South. 609, and cases there cited. But although it showed upon its face that the intestate was a trespasser, it charged negligence subsequent to a discovery of peril, and was not subject to the defendant’s demurrers, and the trial court did not err in overruling same. The rule as laid down by this court, 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 initial or antecedent negligence, yet he 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. — Ala. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84; Louisville & N. R. Co. v. Young, 153 Ala. 232, 45 South. 238, 16 L. R. A. (N. S.) 301; Central of Ga. R. R. Co. v. Foshee, 125 Ala. 199, 27 South. 1006; L. & N. R. R. Co. v. Brown, 121 Ala. 227, 25 South. 609, and cases there cited. As was also held and properly so,’ in the case of Louisville & N. R. Co. v. Young, supra, and in the case of St. Louis R. Co. 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. If the special pleas 2, 3, and 4 only set up contributory negligence on the part of plaintiff’s intestate, anterior to the subsequent negligence of the defendant’s servants as averred in the complaint, such as negligently going [311] or being on the track, they would not be good, and would be subject to the grounds of the demurrer interposed thereto; but said pleas not only set up the intestate’s negligence in going upon and being on the track, but invokes his negligently remaining on the track until he was struck, with a knowledge or consciousness of his clanger. If he remained on the track after becoming aware of his danger, this would be negligence concurrent with or subsequent to the negligence charged to the -defendant’s servants, and would be a complete -defense to the complaint, and the trial court erred in sustaining the demurrers to defendant’s pleas 2, 3, and 4, as they were certainly not subject to the grounds assigned in the demurrer.
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ANDERSON, J.
The intestate being a trespasser on the defendant’s track at the time he was run over or against, and at a point where the defendant owed him no duty to keep a lookout, the defendant’s servants owed him only the duty of preventing the injury, if they could do so, after discovering his peril on the track, and after becoming aware that he could not or would not extricate himself therefrom. — Southern R. Co. v. Gullatt, 150 Ala. 318, 43 South. 577; Southern R. Co. v. Bush, 122 Ala, 470, 26 South. 168. Therefore, the complaint would not be good after showing that the intestate was a trespasser unless it charged willful or wanton misconduct or negligence subsequent to a discovery of peril. — Birmingham. R. Co. v. Jones, 153 Ala. 168, 45 South. 177. We do not understand the authorities to hold that the only duty owing a trespasser is not to wilfully or wantonly injure him, but they also permit a recovery for subsequent negligence as well — that is, for a. negligent failure to use preventative means to avert [309] injury after a discovery of peril, and after a knowledge that the trespasser cannot extricate himself in time to avoid being injured — notwithstanding the act or omission of the servants in charge of the train did not amount to wilful misconduct or wanton negligence. It is true we have authorities, as noticed in section 414, p. 636, vol. 4, Mayfield’s Digest, which in effect hold that a complaint which shows that the plaintiff was a trespasser when injured is bad on demurrer if it fails to aver wanton or wilful misconduct. But these -cases were decided before the doctrine of subsequent negligence had gained much footing in this state, and the negligence there charged was original or initiative negligence as distinguished from subsequent negligence or negligence after a discovery of peril. We think the true rule as testing the sufficiency of a complaint, is that when simple negligence only is charged — that is, initial negligence — it should bring the plaintiff within the protection of the rule and show that he was not a trespasser. —Holland v. L. & N. R. R. Co., 164 Ala. 73, 51 South. 366; Gadsden R. R. Co. v. Julian, 133 Ala. 373, 32 South. 135. Oin the other hand, although the injured party was a trespasser when injured, and this fact is set out in the complaint, it would not be subject to demurrer if it charged that the injury was wilfully or wantonly inflicted, or that it was due to negligence subsequent to a discovery of peril, and which last fact is charged in the only count in the present complaint that went to the jury — count 1. Count 1 does not charge wanton or wilful misconduct, but- charges a mere negligent failure to prevent the injury after a discovery of peril. It does charge that defendant’s servants knew of intestate’s peril, and knew that he could not extricate himself or avoid being injured, but it does not charge that they then wilfully run over or against- him, or that they wan[310] tonly neglected to discharge the duties required in order to avoid running over or against him. The complaint did not charge wanton or wilful misconduct.— L. & N. R. R. Co. v. Brown, 121 Ala. 226, 25 South. 609, and cases there cited. But although it showed upon its face that the intestate was a trespasser, it charged negligence subsequent to a discovery of peril, and was not subject to the defendant’s demurrers, and the trial court did not err in overruling same. The rule as laid down by this court, 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 initial or antecedent negligence, yet he 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. — Ala. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84; Louisville & N. R. Co. v. Young, 153 Ala. 232, 45 South. 238, 16 L. R. A. (N. S.) 301; Central of Ga. R. R. Co. v. Foshee, 125 Ala. 199, 27 South. 1006; L. & N. R. R. Co. v. Brown, 121 Ala. 227, 25 South. 609, and cases there cited. As was also held and properly so,’ in the case of Louisville & N. R. Co. v. Young, supra, and in the case of St. Louis R. Co. 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. If the special pleas 2, 3, and 4 only set up contributory negligence on the part of plaintiff’s intestate, anterior to the subsequent negligence of the defendant’s servants as averred in the complaint, such as negligently going [311] or being on the track, they would not be good, and would be subject to the grounds of the demurrer interposed thereto; but said pleas not only set up the intestate’s negligence in going upon and being on the track, but invokes his negligently remaining on the track until he was struck, with a knowledge or consciousness of his clanger. If he remained on the track after becoming aware of his danger, this would be negligence concurrent with or subsequent to the negligence charged to the -defendant’s servants, and would be a complete -defense to the complaint, and the trial court erred in sustaining the demurrers to defendant’s pleas 2, 3, and 4, as they were certainly not subject to the grounds assigned in the demurrer.
While this case must be reversed because of certain rulings upon the pleading, we are also of the opinion that the trial court erred in refusing the general charge as requested by the defendant. If the -defendant’s evidence was true, the enginemen did all they could to ■avoid injury, as soon as they discovered the intestate, whether he was at the time in peril or not. It may be ■conceded, however, that there was a conflict in the testimony as to whether or not the engineer did not discover him sooner, as some of the plaintiff’s evidence tended to show that the track was straight some distance between the approaching train and the intestate, and that the engineer could have seen him 200 feet, but ■did not attempt to stop until getting within about 60 feet of the intestate, and at too close a range to- do so before striking him. There was also a conflict in the •evidence as to whether or not an alarm, was given the intestate, by the blowing of the whistle, after discovering him on the track. The trainmen owed him no duty to warn until they discovered him and had reason to believe that he was not aware of the approaching [312] train. While the evidence is not very full or definite on the subject, we can only gather from same that the intestate was meeting the train, when it collided with him, and the engineman had, we think, the right to assume that he could see and hear, and did see and hear the train; one or both, as he was meeting said train and they were under no duty to warn him of the approach or to assume that he was not aware of its approach because he did not get off the track as soon as they saw him. It may also be conceded that the engineer saw him before he says he did; but the question then arises, Was the intestate, when discovered by him, in peril? If the engineer discovered him walking on the roadbed, meeting the train, his failure to get off at any particular time or place, was not, of itself, sufficient to impress the engineer with the fact that he could not or would not get off before meeting and colliding with the engine. Coming as he was, facing the approaching train, and using the roadbed as a path, the engineer had the right to assume that he saw or heard the traiu, and would step aside before it reached him. Of course, if he was down on the track, or in such a reclining position, as to indicate, that he could not get off, then the engineer-should have resorted to all means to stop the train upon discovering him in such a position. Or if he was at a point on the track where he could not get off, such as being on a. high trestle, the engineer should make every reasonable effort to stop the train upon discovering him. Or if the trespasser is a child, of such tender years as to not appreciate danger, although it may see- or hear the approaching train, it would doubtless be the-duty of the engineer to stop the train or attempt to do so upon discovering said child as he might not have-the risrht to assume that an infant, of tender years, would get off. There might also be cases where the in[313] jured party is going from tbe approaching train, and continued to remain on the track, when the engineer should warn, and, as a last resort, stop his train, upon the idea that the person did not see or hear the train, and was not aware of its approach. Bnt no snch facts exist in this case as the engineer had the right to assume that the intestate, an old hut not disabled man, who was meeting the train, saw anfi heard it, one or both, and would get off the track before the engine met him, notwithstanding a delay in doing so. Neither does the proof show that the intestate could not get out of the way at the point where he was injured. True, the plaintiff’s proof shows that the track was elevated with sloping embankments from á to 5 feet on each side, with weeds and briars where the embankments ended, but this does not show that the intestate could not have gotten off the track or that the engineer did not have the right to assume that he would not do- so. Presumptively the engineer had the right to assume that the intestate was aware of the approach of the train, and that he would get out of the way before it struck him, notwithstanding he may have encountered a slight embankment and weeds and briars in doing so; and unless this presumption was overcome, by showing ii.ai some disability to get out of the way existed, either- due to the condition of the person, track, or other cause, and that the engineer was aware of such disability, the defendant was entitled to the general charge.
The trial court erred in permitting the plaintiff to introduce in evidence the ordinance of the town of Ozark, as it was immaterial to the issue. In the first place, the collision was not within the corporate limits of the town, secondly, if it had occurred in said town, a violation of the ordinance would only show initial or ante[314] cedent negligence, and not subsequent negligence as counted on in count 1 of the complaint.
The judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
Dowdell, C. J., and Sayre and Evans, JJ., concur.