COLEMAN,!.
— The action is on the case, brought Toy Hurt to recover damages for personal injuries, alleged to have been sustained by the negligence of the defendant, while he was in its employment as an engineer.
.The court permitted the plaintiff to ask his own witness Will Hill, against the objection of the defendant, if he had not testified on a former trial, as follows : (The statement is then set out.) The court permitted the question to be asked for the purpose, as stated, by the court at the time, to refresh the memory of the witness, and not for the purpose of impeachment. It is a matter [44]*44largely within the discretion of the court, to permit a party to refresh the memory of a witness. The witness answered that he “did not remember.” The general rule is, a party can not impeach his own witness, by showing that he is unworthy of belief, or by proving that he has made contradictory statements, but he may refresh his memory in a proper way. This is frequently done by showing the witness a memorandum, and it is permissible to do so, by calling the attention of the witness directly to some particular circumstance or statement. It does not appear that it was used for any other purpose, and in this case, the question elicited no response, unfavorable to the defendant. A party is not held bound by any statement of fact made by his 'own witness, if ho can by other evidence show that in truth the statement was incorrect. The deportment of a witness on the stand, his manner of testifying, may be considered by a jury in weighing his evidence, and is a legitimate subject for argument by either side. A witness may discredit his own testimony by his manner when testifying. There was no error in the ruling of the court, in the several assignments of error, involving this question. The court did not err in admitting the American Tables of Mortality. — Mary Lee Coal & Rwy. Co. v. Chambliss, 97 Ala. 171, 11 So. Rep. 897; Ala. Gold Life Ins. Co. v. McDonnell, 85 Ala. 401,5 So. Rep. 120.
A great many assignments of error are based upon the charges given, and the refusal to charge as requested by the defendant. The three charges given for the plaintiff are free from error. Thq first asserts the proposition, that “if the plaintiff kept the best lookout for switches and obstructions on the track he could, consistent with his other duties to watch for signals and manage the engine, if such other duties were of equal importance, this would not be negligence.” The charge is not complete, but considered in connection with the evidence, it is easily understood, was not calculated to mislead and was not abstractly erroneous. The second charge given for plaintiff asserted that negligence on the part of the plaintiff, which did not contribute to his injury, would not prevent a recovery; and the third, asserted the proposition, thoroughly established in this court, that if defendant knew of plaintiff's peril in time to have prevented the injury, and could have prevented it by the use of [45]*45means then under its control, and negligently failed to apply the means to prevent the injury, and plaintiff was injured in consequence of such negligence, he would be entitled to recover, notwithstanding plaintiff may have been guilty of negligence, provided plaintiff did all he could to prevent the accident and save himself from harm after he became aware of his peril. Authorities collected in L. & N. R. R. Co. v. Webb, 97 Ala. 308,12 So. Rep. 375.
The portions of the oral charge excepted to involve very much the same principles of law, as those involved in the charges given for the plaintiff, and which have been declared to be free from error. The argument against the oral charge of the court is not insisted upon so much because of any unsoundness in the propositions of law asserted, as for their qualifying effect upon another charge of the court, given at the request of the defendant, after the oral charge was concluded. It is insisted that the ruling of the court is inconsistent in this, that in the oral charge, the court left it with the jury to say, whether there were facts in evidence, which showed that plaintiff was guilty of proximate contributory negligence, and in an affirmative charge the court instructed the jury at the request of the defendant, as a matter of law, “that if the jury believed the evidence, the plaintiff was guilty of negligence which proxiraatelv contributed to his injury.” We have held that there was no error in the portions of the oral charge excepted to, and if we are correct, and if there is repugnancy in the oral charge and the affirmative charge given at the request of the defendant, it must be that the er-ror lies in the charge given at the request of the defendant. If there was error committed by the court, in favor of the defendant and at his request, the defendant can not take advantage of it to the prejudice of the plaintiff. The statute, section 2754 of the Code, prohibits the court from charging upon the effect of evidence, unless required to do so by one of the parties, and if upon the evidence in this case, the court had charged the jury, exmero motu, that plaintiff was guilty of proximate, contributory negligence, and the verdict had been for the defendant, we are not prepared to say it would not have been reversible error. Code, § 2754, and authorities cited in Code. Employés can not be held responsible for the failure to perform one duty, when such failure resulted from the necessary observ[46]*46an.ce of another, of equal importance and equally binding upon him. Some portions of the oral charge excepted to, that which declared plaintiff’s right to recover, although he may have been guilty of contributory negligence, was undoubtedly free from error, and the exception going to the whole, for this additional reason, was not well taken.
Under the written instruction of the court given at request of defendant the jury were required to find, that plaintiff was guilty of proximate contributory negligence. The only issue of fact left open to be ascertained by the jury, under this charge of the court, was whether defendant was guilty of such wanton or willful negligence, or its equivalent, as to authorize a verdict for the plaintiff although lie may have been guilty of proximate contributory negligence. In the case of L. &. N. R. R. Co. v. Webb, 97 Ala. 308, 12 So. Rep. 375, it is said : “We have often held that, if plaintiff’s peril was discovered in time to avoid the injury by the exercise of due care on the part of the defendant and the injury was the'result of the failure to perform its duty in this respect, plaintiff would be entitled to recover, although he may have been guilty of culpable negligence in the first instance.” We further held that, “the practice which prevails in this State authorizes the introduction m evidence of reckless, wanton, or willful negligence, under a complaint which avers only simple negligence ; and a recovery may be had upon such proof, although the evidence may sustain a plea of simple contributory negligence.” The authorities are collected in the Webb Case, supra.
The first count of the complaint charged simple negligence as distinguished from wanton or willful negligence, or its equivalent, and under the foregoing authorities, it was proper to admit evidence to show that defendant negligently failed to use preventive effort after discovering plaintiff’s peril, and that such negligence caused the injury.
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COLEMAN,!.
— The action is on the case, brought Toy Hurt to recover damages for personal injuries, alleged to have been sustained by the negligence of the defendant, while he was in its employment as an engineer.
.The court permitted the plaintiff to ask his own witness Will Hill, against the objection of the defendant, if he had not testified on a former trial, as follows : (The statement is then set out.) The court permitted the question to be asked for the purpose, as stated, by the court at the time, to refresh the memory of the witness, and not for the purpose of impeachment. It is a matter [44]*44largely within the discretion of the court, to permit a party to refresh the memory of a witness. The witness answered that he “did not remember.” The general rule is, a party can not impeach his own witness, by showing that he is unworthy of belief, or by proving that he has made contradictory statements, but he may refresh his memory in a proper way. This is frequently done by showing the witness a memorandum, and it is permissible to do so, by calling the attention of the witness directly to some particular circumstance or statement. It does not appear that it was used for any other purpose, and in this case, the question elicited no response, unfavorable to the defendant. A party is not held bound by any statement of fact made by his 'own witness, if ho can by other evidence show that in truth the statement was incorrect. The deportment of a witness on the stand, his manner of testifying, may be considered by a jury in weighing his evidence, and is a legitimate subject for argument by either side. A witness may discredit his own testimony by his manner when testifying. There was no error in the ruling of the court, in the several assignments of error, involving this question. The court did not err in admitting the American Tables of Mortality. — Mary Lee Coal & Rwy. Co. v. Chambliss, 97 Ala. 171, 11 So. Rep. 897; Ala. Gold Life Ins. Co. v. McDonnell, 85 Ala. 401,5 So. Rep. 120.
A great many assignments of error are based upon the charges given, and the refusal to charge as requested by the defendant. The three charges given for the plaintiff are free from error. Thq first asserts the proposition, that “if the plaintiff kept the best lookout for switches and obstructions on the track he could, consistent with his other duties to watch for signals and manage the engine, if such other duties were of equal importance, this would not be negligence.” The charge is not complete, but considered in connection with the evidence, it is easily understood, was not calculated to mislead and was not abstractly erroneous. The second charge given for plaintiff asserted that negligence on the part of the plaintiff, which did not contribute to his injury, would not prevent a recovery; and the third, asserted the proposition, thoroughly established in this court, that if defendant knew of plaintiff's peril in time to have prevented the injury, and could have prevented it by the use of [45]*45means then under its control, and negligently failed to apply the means to prevent the injury, and plaintiff was injured in consequence of such negligence, he would be entitled to recover, notwithstanding plaintiff may have been guilty of negligence, provided plaintiff did all he could to prevent the accident and save himself from harm after he became aware of his peril. Authorities collected in L. & N. R. R. Co. v. Webb, 97 Ala. 308,12 So. Rep. 375.
The portions of the oral charge excepted to involve very much the same principles of law, as those involved in the charges given for the plaintiff, and which have been declared to be free from error. The argument against the oral charge of the court is not insisted upon so much because of any unsoundness in the propositions of law asserted, as for their qualifying effect upon another charge of the court, given at the request of the defendant, after the oral charge was concluded. It is insisted that the ruling of the court is inconsistent in this, that in the oral charge, the court left it with the jury to say, whether there were facts in evidence, which showed that plaintiff was guilty of proximate contributory negligence, and in an affirmative charge the court instructed the jury at the request of the defendant, as a matter of law, “that if the jury believed the evidence, the plaintiff was guilty of negligence which proxiraatelv contributed to his injury.” We have held that there was no error in the portions of the oral charge excepted to, and if we are correct, and if there is repugnancy in the oral charge and the affirmative charge given at the request of the defendant, it must be that the er-ror lies in the charge given at the request of the defendant. If there was error committed by the court, in favor of the defendant and at his request, the defendant can not take advantage of it to the prejudice of the plaintiff. The statute, section 2754 of the Code, prohibits the court from charging upon the effect of evidence, unless required to do so by one of the parties, and if upon the evidence in this case, the court had charged the jury, exmero motu, that plaintiff was guilty of proximate, contributory negligence, and the verdict had been for the defendant, we are not prepared to say it would not have been reversible error. Code, § 2754, and authorities cited in Code. Employés can not be held responsible for the failure to perform one duty, when such failure resulted from the necessary observ[46]*46an.ce of another, of equal importance and equally binding upon him. Some portions of the oral charge excepted to, that which declared plaintiff’s right to recover, although he may have been guilty of contributory negligence, was undoubtedly free from error, and the exception going to the whole, for this additional reason, was not well taken.
Under the written instruction of the court given at request of defendant the jury were required to find, that plaintiff was guilty of proximate contributory negligence. The only issue of fact left open to be ascertained by the jury, under this charge of the court, was whether defendant was guilty of such wanton or willful negligence, or its equivalent, as to authorize a verdict for the plaintiff although lie may have been guilty of proximate contributory negligence. In the case of L. &. N. R. R. Co. v. Webb, 97 Ala. 308, 12 So. Rep. 375, it is said : “We have often held that, if plaintiff’s peril was discovered in time to avoid the injury by the exercise of due care on the part of the defendant and the injury was the'result of the failure to perform its duty in this respect, plaintiff would be entitled to recover, although he may have been guilty of culpable negligence in the first instance.” We further held that, “the practice which prevails in this State authorizes the introduction m evidence of reckless, wanton, or willful negligence, under a complaint which avers only simple negligence ; and a recovery may be had upon such proof, although the evidence may sustain a plea of simple contributory negligence.” The authorities are collected in the Webb Case, supra.
The first count of the complaint charged simple negligence as distinguished from wanton or willful negligence, or its equivalent, and under the foregoing authorities, it was proper to admit evidence to show that defendant negligently failed to use preventive effort after discovering plaintiff’s peril, and that such negligence caused the injury. Whether the evidence was sufficient to authorize the plaintiff to recover under the first count, notwithstanding plaintiff may have been guilty of contributory negligence was properly left to the jury. The gravamen of the third count of the complaint is, that defendant knew of plaintiff’s danger, “and could by the exercise of proper diligence have prevented his injuries as aforesaid, which they negligently failed to do.” The [47]*47negligence, here averred is the equivalent of wanton or willful misconduct. To authorize a recovery under this count, it was necessary to prove the negligence averred. Proof of simple negligence, that is the failure to exercise ordinary care, avou!d not sustain this count of the complaint. A plea to such a count, which avers as a defense that plaintiff Avas guilty of negligence Avhich proximately contributed to his injury does not present a complete answer, for plaintiff may recover notAvithstanding his contributory negligence upon proof that defendant was guilty of wanton or willful injury or such negligence as to be the equivalent of Avillful or wanton wrong. The plea does not answer the whole complaint. — A. G. S. R. R. Co. v. Frazier, 93 Ala. 45, 9 So. Rep. 303; M. &. E. Railway Co. v. Stewart, 91 Ala. 421, 8 So. Rep. 708; L. &. R. R. (Co. v. 1 Watson, 90 Ala. 68, 8. So. Rep. 249.
Instead of objecting to the plea because of its insufficiency, the plaintiff joined issue upon it. The rule is, that Avliere issue is joined upon an insufficent plea, it becomes an issue to be tried by the jury, and although it may be immaterial, or show no bar toa recovery, the court has no discretion but must receive evidence, if offered, in support of the plea, and if sustained by the proof, the defendant is entitled to have the issue found in his favor. — Farrow v. Andrews, 69 Ala. 96; Agnew, Adm’r. v. Walden & Son, 84 Ala. 503, 4. So. Rep. 672; Memphis A’ Charleston R. R. C. v. Graham, 94 Ala. 545; 10 So. Rep. 283.
The court, as we have stated, charged the jury at the request of the defendant, as a matter of law, that plaintiff was guilty of negligence, which proximately contributed to his injury. It thus determined that the plea of the defendant to the third count of the complaint was sustained by the proof. Although insufficient as a plea, issue having been joined upon it, and the defendant, as judicially determined by the court, having sustained the plea by uncontroverted evidence, to be consistent, it Avould appear that the court was bound to charge the jury at the request of the defendant, that the plaintiff could not recover under the third count of the complaint.
We are of opinion the court charged the jury too favorably for the defendant, when it declared, as a matter of laAv that plaintiff was guilty of contributory negligence. We think under one phase of the evidence, the [48]*48j ary might have found that plaintiff was not guilty of contributory negligence. If after crossing the Ala. Gr. So. R. R. track, plan tiff looked and saw that the switch was properly set, and he received orders from the yardmaster to move down the track, and if it was equally incumbent on him to attend to his engine, and watch for signals, and he ‘[kept the best lookout he could for the switches, consistent with his other duties of equal importance,” and was also informed by his fireman that the switch was all right, questions of fact to be determined by the jury, a failure on his part to discover and know exactly when the switch was turned, would not, as a matter of law, necessarily amount to contributory negligence. Under the evidence, it was a question for the jury. If, therefore, the court erred in favor of the defendant, in giving the affirmative charge at its request, that plaintiff was guilty of contributory negligence, the error cannot be visited upon the plaintiff, if in fact under the evidence, the court ought not to have thus charged the jury. The principle of law decided in the case of Kansas City, Memphis & Birmingham R. R. Co. v. Sanders, 98 Ala. 293, is directly in point.
Admissions which are relevant and material to the issue made by a party to a suit, whether made as a witness on the stand or elsewhere, are always admissible against him. He is not concluded by them, unless they induce action, so as to stop him afterwards, but he may explain, or show that in making the statement, he was mistaken. Where a party testifies on a subsequent trial different from that given on a former trial, it is competent for the adverse party to give in evidence his statement on the first trial, and it is the duty of the jury to consider both statements in connection with the explanation, if any is made, in the light of all the evidence, and determine which is true. A charge which singles out any particular part of the evidence and bases a conclusion of law upon it, gives the fact thus emphasized undue prominence, and is calculated to mislead the jury. Such charges generally are argumentative and should be refused. The charges asked by defendant in regard to the former admissions of the plaintiff are faulty in this respect, and the court did not err in refiising them.
Many of the refused charges ignore that phase of the evidence (and there was such evidence by the plaintiff), [49]*49which tended to show that defendant failed to exercise proper preventive effort, after plaintiff’s peril was discovered. For this reason they were properly refused. We need not specify them. Section 2750 of the Code, which provides that “charges moved for by either party in writing, must be given or refused in the terms in which they are written,” was not intended to license either party to move for charges ad infinitum. A court will not be in error for refusing charges which are mere repetitious of charges which have been given, and a mere variation in the use of words, which “'hideth counsel,” and which in no way change the meaning or assert different principles from those given, will not affect the rule. Some of the charges asked are subject to this criticism.
Charge No. 5 refused by the court is of that character. The defendant had received the benefit of the principle of law asserted in this charge in four separate charges, given by the court at the instance of the defendant, and in the oral instructions given by the court. The charge (No. 5) may be subject to the further criticism, that it refers to the jury to determine what is the “legal” equivalent of willful or intentional wrong; but aside from this, it is a mere repetition of instructions which were given to the jury. No possible injury can result to plaintiff by the rule of construction we place upon the statute, for it is now provided that charges “given” are to be. taken out by the jury, while those refused are to be retained by the clerk. — Acts of 1889-90, page 90, amending section 2756 of the Code. It is manifest, then, that the defendant received the benefit of charge No. 5 in the charges given at its request, and was not injured by the refusal of the court to give charge No. 5.
Charges 17 and 21 are misleading, and also state the proposition in language too strong. When it is shown that statements made by a witness on his examination are different from those made on a previous examination, this is evidence tending to impeachment. — Harris v. State, 96 Ala. 24; 11 So. Rep. 255. but when the witness makes an explanation of the different statements, the jury would not be authorized capriciously to reject the explanation. The charges should not have ignored the explanatory evidence. Contradictory statements tend to impeachment, but do not as. matter of law [50]*50amount to an impeachment. If a statement is intentionally made, the witness knowing at the time it is untrue, a jury would be authorized to reject the testimony of the witness entirely.
We are of opinion that charge 22 is involved and is subject to the same criticism. Leaving off the last phrase of the charge, “if they believe he knowingly did so,” there is but little difference, if any, in the principle asserted in this charge and in 17 and 21 supra. If the jury believed that on either examination the witness stated that as true which he knew to be untrue, in regard to a material matter, the jury would be authorized to discredit the witness altogether, and it would not be an invasion of their province to so instruct them, but that is not the proposition asserted by the charge. The witness in the case at bar knew at the time of his last examination he had made a different statement on his first examination, and he undertook to account for the difference, and to explain why he made a mistake on his first examination. If the jury were satisfied with the explanation, although they may have believed that the witness knowingly and intentionally testified as he did on his first examination, yet if they believed he made'an honest mistake, which he satisfactorily explained, the mere difference of the two statements would not in law justify the court to instruct the jury as requested. The charge as framed ignores the explanatory evidence, and at least was calculated to mislead the jury, and possibly invaded their province. There was no error in refusing it. ' 'Charges should be clear and of easy interpretation.” Hughes v. Anderson, 68 Ala. 280; Harmon v. McRea, 9-1 Ala. 401, 8 So. Rep. 548.
Some part of the statements of counsel to the jury in his closing argument, to which exception was taken, was * authorized by the evidence, and the exception going to the entire part, that which was authorized as well as that not justified by the evidence, the court was not bound to separate the legal from the illegal, but was justified in refusing the motion as made.
A fair and satisfactory discussion of the question as to how far counsel can go in the argument of evidence before a jury, without transgressing, legitimate limits, may be found in the case of Mitchum v. The State, 11 Ga. 615, and Tucker v. Henniker, 41 N. H. 317. The doctrine [51]*51is thoroughly established in this State, and its limitations have been judicially fixed. See the following authorities : Nelson v. Shelby Manf. & Imp. Co., 96 Ala. 515, 11 So. Rep. 695; Lunsford v. Dietrich, 93 Ala. 565, 9 So. Rep. 308; Billingsley v. State, 96 Ala. 126, 11 So. Rep. 409; Cross v. State, 68 Ala. 476; Jackson v. Robinson, 93 Ala. 157, 9 So. Rep. 393; Railroad Co. v. Orr, 91 Ala. 548, 8 So.Rep. 360.
There is no error in the record, and the case must be affirmed.