ANDERSON, J.
As was held in the case of L. & N. Co. v. Marbury, 125 Ala. 237, 28 South. 438, 50 L. R. A. 620, and repeatedly approved by this court, the complaint need not set out in detail the specific acts constituting negligence. Count 1 was not therefore subject to defendant’s demurrer which was properly overruled by the trial court.
. The running of the train in violation of a municipal ordinance cannot be made the basis of an action by an employe for injuries resulting therefrom. A compliance with the statute and municipal ordinances in this respect is intended for the protection of the public and not the employes of the railroad company. — Gen. of Ga. v. Martin, 138 Ala. 531, 36 South. 426; Lewis v. So. R. R., 143 Ala. 133, 38 South. 1023; L. & N. R. R.. Co. v. Markee, 103 Ala. 173, 15 South. 511, 49 Am. St. Rep. 21. Count 2 showed that the intestate was an employe, and the running of the train in violation of the town ordinance was not the breach of a duty owing him, and the demurrer to this count should have been sustained.
While a complaint need not define the quo modo, or specify the particular acts of diligence omitted, yet, when simple negligence constitutes the cause of action, [80] it is incumbent upon the plaintiff to bring himself within the protection of the negligence averred by alleging such a relationship as would enable him to recover for simple negligence. — Gadsden R. R. Co. v. Julian, 133 Ala. 373, 32 South. 135; Cheuwning, 93 Ala. 25, 9 South. 458. Count 6 was bad, in that it did not show that the intestate was entitled to redress for simple negligence. Counsel for the appellee concedes that this defect in the count would be fatal, under the previous decisions of this court, but contends that, inasmuch as section 5476 (Code 1907)' changes the burden .of proof, the complaint was sufficient in averring that the intestate was killed in the town of Athens, a place covered by section 5473 of the Code of 1907. This statute (section 5476) was construed in the case of So. R. R. v. Smith, 163 Ala. 174, 50 South. 390, and it was there held that, as to persons, the burden of proof was not upon .the railroad unless the accident or killing was at a place covered by the three preceding sections. Whether this section applies to this intestate or not, as to the burden of proof, it was not intended to change the degree of negligence or the- obligation that a railroad owed to a trespasser. In other words, whether the place of the killing cast the burden on the railroad or not of showing no negligence, it did not mean to render the obligations to trespassers any greater or to permit them to recover for any lesser degree of negligence than they could have done previous to the adoption of the statute.
While it may have been the duty of the engineer to keep a lookout at the point named, it cannot be said that the defendant was liable to the intestate for his failure to keep a lookout for trains himself and flag them. The (demurrer should have -been sustained to count 7.
[81] Count 11 charges simple negligence, and also avers that the intestate went to sleep on the track. If he was not in the discharge of his duty hut Avent to sleep on the track, as charged in the complaint, he Avas guilty of contributory negligence, and was, in effect, a trespasser, and the defendant OAved him no duty other than not to run over him after discovering his peril. The count was subject to thé demurrer interposed thereto. — Savannah & Western R. R. v. Meadors, 95 Ala. 144; 10 South. 141; Julian’s Case, supra. We are not unmindful of the rule that subsequent negligence can be shoAvn, under a count which avers negligence generally, and after the defendant has shown contributory negligence; but the counts in those cases did not aver that the plaintiff Avas guilty of contributory negligence, and the question Avas raised on the evidence or by charge. The demurrer confesses only the averments of the complaint,, and which must be construed most strongly against the pleader, and when a complaint shows on its face that the plaintiff was guilty of contributory negligence or was a trespasser, then it is defective, unless it goes further and avers negligence subsequent to a discovery of his peril.
As this case must be reversed upon the pleading, and as many of the charges, made a basis of assignments of error, relate to counts held defective, we will content ourselves with only such a discussion of the remaining questions as may afford a guide upon the next trial, in disposing of what we consider the chief issue in the case.
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ANDERSON, J.
As was held in the case of L. & N. Co. v. Marbury, 125 Ala. 237, 28 South. 438, 50 L. R. A. 620, and repeatedly approved by this court, the complaint need not set out in detail the specific acts constituting negligence. Count 1 was not therefore subject to defendant’s demurrer which was properly overruled by the trial court.
. The running of the train in violation of a municipal ordinance cannot be made the basis of an action by an employe for injuries resulting therefrom. A compliance with the statute and municipal ordinances in this respect is intended for the protection of the public and not the employes of the railroad company. — Gen. of Ga. v. Martin, 138 Ala. 531, 36 South. 426; Lewis v. So. R. R., 143 Ala. 133, 38 South. 1023; L. & N. R. R.. Co. v. Markee, 103 Ala. 173, 15 South. 511, 49 Am. St. Rep. 21. Count 2 showed that the intestate was an employe, and the running of the train in violation of the town ordinance was not the breach of a duty owing him, and the demurrer to this count should have been sustained.
While a complaint need not define the quo modo, or specify the particular acts of diligence omitted, yet, when simple negligence constitutes the cause of action, [80] it is incumbent upon the plaintiff to bring himself within the protection of the negligence averred by alleging such a relationship as would enable him to recover for simple negligence. — Gadsden R. R. Co. v. Julian, 133 Ala. 373, 32 South. 135; Cheuwning, 93 Ala. 25, 9 South. 458. Count 6 was bad, in that it did not show that the intestate was entitled to redress for simple negligence. Counsel for the appellee concedes that this defect in the count would be fatal, under the previous decisions of this court, but contends that, inasmuch as section 5476 (Code 1907)' changes the burden .of proof, the complaint was sufficient in averring that the intestate was killed in the town of Athens, a place covered by section 5473 of the Code of 1907. This statute (section 5476) was construed in the case of So. R. R. v. Smith, 163 Ala. 174, 50 South. 390, and it was there held that, as to persons, the burden of proof was not upon .the railroad unless the accident or killing was at a place covered by the three preceding sections. Whether this section applies to this intestate or not, as to the burden of proof, it was not intended to change the degree of negligence or the- obligation that a railroad owed to a trespasser. In other words, whether the place of the killing cast the burden on the railroad or not of showing no negligence, it did not mean to render the obligations to trespassers any greater or to permit them to recover for any lesser degree of negligence than they could have done previous to the adoption of the statute.
While it may have been the duty of the engineer to keep a lookout at the point named, it cannot be said that the defendant was liable to the intestate for his failure to keep a lookout for trains himself and flag them. The (demurrer should have -been sustained to count 7.
[81] Count 11 charges simple negligence, and also avers that the intestate went to sleep on the track. If he was not in the discharge of his duty hut Avent to sleep on the track, as charged in the complaint, he Avas guilty of contributory negligence, and was, in effect, a trespasser, and the defendant OAved him no duty other than not to run over him after discovering his peril. The count was subject to thé demurrer interposed thereto. — Savannah & Western R. R. v. Meadors, 95 Ala. 144; 10 South. 141; Julian’s Case, supra. We are not unmindful of the rule that subsequent negligence can be shoAvn, under a count which avers negligence generally, and after the defendant has shown contributory negligence; but the counts in those cases did not aver that the plaintiff Avas guilty of contributory negligence, and the question Avas raised on the evidence or by charge. The demurrer confesses only the averments of the complaint,, and which must be construed most strongly against the pleader, and when a complaint shows on its face that the plaintiff was guilty of contributory negligence or was a trespasser, then it is defective, unless it goes further and avers negligence subsequent to a discovery of his peril.
As this case must be reversed upon the pleading, and as many of the charges, made a basis of assignments of error, relate to counts held defective, we will content ourselves with only such a discussion of the remaining questions as may afford a guide upon the next trial, in disposing of what we consider the chief issue in the case.
Under the undisputed evidence, the intestate was guilty of contributory negligence such as to preclude a recovery for any anterior or initiative negligence of the defendant’s servants. The undisputed evidence shows that the intestate Avent to sleep on the track, and there [82] was no evidence, or reasonable inference dedncible therefrom, that he was sick or became suddenly stricken, so as to bring him within the influence of the case of Helton v. Ala. Mid. R. R., 97 Ala. 280, 12 South. 276. All of the witnesses who saw intestate just before he was killed testify that he was asleep. One witness left him a few minutes before and saw nothing the matter with him. It was admitted that he was in good health, and, indeed, counts 11 and 13 aver that he fell asleep. Therefore,' the only theory upon which the plaintiff would be entitled to recover is that negligence, subsequent to a discovery of the intestate’s peril, was the proximate cause of his death; that is, that the engineer not only discovered him, but discovered him in a perilous position, and negligently omitted to discharge some duty, which, if discharged, would have saved the intestate. The proof showed that Holland was so situated on the track as to impress the observer that he was in a perilous position. Douglass, the engineer, testifies that he was within less than 200 feet (about 125 or 150 feet) when he discovered him, and that he did all things to arouse him and to stop the train. The undisputed evidence also shows that this particular train at the rate of speed it was going could not have been stopped within the distance as given by the engineer, between him and the intestate when he first saw him, and if it was true that the engineer was not further from the intestate when he first saw him than' he said he was, he was not guilty of proximate, subsequent negligence, as the evidence acquits him of any negligence for failing to blow whistle. On the other hand, the plaintiff offered evidence tending to show that the engineer discovered the intestate in time to have stopped the train before it struck him. Miss “Bettie Sue Griffin” testified that the train first blew for the station at the cattle gap; that [83] later it blew sharp louder blasts; “that right at Hatchett’s barn, which is on the east side of the track, * * the train commenced to give sharp loud blasts of the whistle, blowing for Mr. Holland; it started blowing at Hatchett’s barn and blew until it got to him.’’ There was evidence that the distance from Hatchett’s barn to where Holland was struck was 435 1-2 feet, and there was also evidence that this train could have been stopped within that distance. It was therefore for the jury to determine whether or not the engineer discovered Holland in a perilous position; that is, a position that would impress the reasonable mind with the idea that he would not or could not get off the track in time to have stopped the train before striking him, and negligently failed to do so.
It is also insisted by appellant’s counsel that the defendant was entitled to the general charge as to count 1 on account of a variance; that the count avers that the intestate was killed while in the discharge of his duty, and the proof does not establish this averment. This count does not aver that the intestate was actually engaged in the discharge of his duty at the time he was struck, and the averment is unlike the one considered in the case of So. R. R. v. McWhorter, 156 Ala. 269, 47 South. 84. The complaint in said case averred that’ the intestate was engaged in the discharge of his duty, flagging one of the defendant’s trains, when he was struck, and the proof showed that he was not flagging a train when he was struck, but had stuck his flag in the ground and had gone down the track.
For the errors designated, 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.