SOMERVILLE, J.
— On the trial in the court below it was not disputed but that plaintiff was a trespasser on defendant’s track, and was guilty of contributory negligence in going thereon as he did. Plaintiff's case, therefore, was that defendant’s servants failed to use due diligence to stop or slacken the speed of the train and so to avoid injuring plaintiff after discovering his peril, having time and opportunity to do so; or ■that they wantonly injured him. The latter phase of the case included in issue hot only the wanton negligence of the enginemen in not stopping or slackening the speed of the train with an actual knowledge of plaintiff's imminent peril, but also their wanton negligence in running the train through an incorporated town and densely populated locality at a dangerous rate of speed and without proper vigilance or control, and over a section of track in constant use as a foot-way by great numbers of people.
The plea of the general issue imposed upon plaintiff the burden of affirmatively proving these issues; while pleas 2 and 9 sought to avoid the effect of proof of defendant’s subsequent negligence by showing that plaintiff himself was guilty of still later negligence in remaining on the track until he was struck, with knowledge that the train.was approaching and would strike him if he so remained.
Demurrers were sustained to defendants special pleas 3, 4, 5, 6, 7, 8, 10,11, and 12, and error is assigned therefor. All of these, except plea 3, were subject to thd ground of demurrer that they did not show by specific averment, or unequivocal statement of facts, that plaintiff was conscious of his imminent danger.
[406]*406Plea 3, however, is coupled in assignment with defective plea 4, and so the assignment cannot be sustained. So pleas 5, 6 and 7, and pleas 8, 9, 10 and 11, arel grouped in assignment, and any one of either group being defective, the whole assignment is bad.
But reversible error cannot be imputed with respect to any of the rulings on these pleas for the reason that, in so far as they set up plaintiff’s subsequent negligence, or last clear chance to escape injury, that issue was fully available to defendant under plea 9 and with a diminished burden as to collateral averments; and, in so far as they were merely a traverse of plaintiff’s case, all of their averments were open to proof under the genera] issue. And, in fact, both issues were clearly framed by the evidence, and fairly presented to the jury under the instructions of the court. No prejudice resulted to defendant by reason of the elimination of these pleas, and it is unnecessary to- further discuss their merits.
We do not find that charge 1, refused to defendant, is referred to in any assignment of error.
Charge 2,' refused to defendant, is defective in that it requires a verdict for defendant' upon the predicate solely that upon the discovery of plaintiff’s presence on the track, and his inadvertence to the approaching train, the engineer blew the whistle, and put in operation the appliances at his command to avoid the collision. That ignores that aspect of defendant’s liability based upon the duty of its enginemen to have the train under reasonable control, and to keep a lookout and discover persons who might be upon the track at the point of the collision.
Whether the enginemen were guilty of negligence in these particulars, and, if so, whether it was wanton negligence, in view of the locality and the known hab[407]*407itual use of the track at that point by the public, were questions for the jury on the whole evidence. — So. Ry. Co. v. Stewart, 179 Ala. 304, 60 South. 927, and cases cited. If limited to the other phases of the case, the charge would have been a correct statement of the law.
The failure of the defendant’s engineer, after discovering plaintiff in imminent peril on the track, to use all the means within his power known to skillful engineers to stop the train before plaintiff was injured would, under some tendencies of the evidence, have been a negligent breach of duty. The injury occurred in an incorporated toAvn; and charge 2, given for plaintiff, correctly placed the bnrden of proof as to its freedom from negligence upon the defendant company. — Code 1907, §§5473, 5476.
Other assignments of error relating to rulings upon the evidence and to charges given or refused are not argued, and will not be considered.
On the issue of misconduct on the part of plaintiff and two of the jurymen, and undue influence upon them by association Avith plaintiff during the trial, as presented by defendant’s motion to set aside the verdict, the following facts are shown without dispute:
The jury was impaneled for the trial of this case on Wednesday evening. Two of the jurors, Parker and HaAvkins, were staying at the boarding house of a Mrs. Porter. They occupied the same room, in common with one Smith, a grand juror, and one Speigle, a petit juror not serving in the Turney Gase. On Wednesday night plaintiff applied to Mrs. Porter for board and lodging, and was assigned by her to the room occupied by Parker and Hawkins, which contained three beds. On that night plaintiff slept in the bed with Parker, HaAvkins sleeping in one of the other beds. On Thursday night all three of them slept in the room in dif[408]*408ferent beds. On Friday night the judge charged the jury, and after deliberating about an hour the jury separated for the night and left the courthouse at 11:30 p. m. Plaintiff there joined Parker and they walked to the boarding house together by themselves, stopping for a while on the way. Plaintiff, Parker and Hawkins again slept in the same room that night. On Saturday morning the jury rendered a verdict for plaintiff for $10,500.
.During the course of the trial plaintiff ate all of his meals at the same table with Parker and Hawkins, and many times walked to and from the courthouse with Parker, in company with others. In their room they dressed and undressed in each other’s presence, and shared by turns the use of its simple conveniences. All of them testify that there was no conversation at any time between plaintiff and the jurors in regard to the case on trial.
Plaintiff says he does not remember talking with Parker as to where the latter was boarding before plaintiff went to Mrs. Porter’s. But Parker says: “There was something said about a boarding place, and I told him where I was boarding; my best recollection is he did not say he would go there, but he did go there for supper that night.” Plaintiff says his father directed him to go there, and that he made no request to be placed in the room with the jurors. Mrs. Porter also says she placed him in that room without any request from him, because she had no other available place for him.
Plaintiff was a youth of 19 years, born and raised eight miles from the village of Falkville; and Parker was a neighbor living a mile or so away with whom he was on friendly, but not intimate, terms; while Hawkins lived about eight miles distant from plaintiff. [409]*409Plaintiff says lie was never in court, and never had anything to do with litigation before this time. He has attended eight sessions of school of six months each.
The effect of misconduct on the part of jurors and parties has often been considered by the courts.
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SOMERVILLE, J.
— On the trial in the court below it was not disputed but that plaintiff was a trespasser on defendant’s track, and was guilty of contributory negligence in going thereon as he did. Plaintiff's case, therefore, was that defendant’s servants failed to use due diligence to stop or slacken the speed of the train and so to avoid injuring plaintiff after discovering his peril, having time and opportunity to do so; or ■that they wantonly injured him. The latter phase of the case included in issue hot only the wanton negligence of the enginemen in not stopping or slackening the speed of the train with an actual knowledge of plaintiff's imminent peril, but also their wanton negligence in running the train through an incorporated town and densely populated locality at a dangerous rate of speed and without proper vigilance or control, and over a section of track in constant use as a foot-way by great numbers of people.
The plea of the general issue imposed upon plaintiff the burden of affirmatively proving these issues; while pleas 2 and 9 sought to avoid the effect of proof of defendant’s subsequent negligence by showing that plaintiff himself was guilty of still later negligence in remaining on the track until he was struck, with knowledge that the train.was approaching and would strike him if he so remained.
Demurrers were sustained to defendants special pleas 3, 4, 5, 6, 7, 8, 10,11, and 12, and error is assigned therefor. All of these, except plea 3, were subject to thd ground of demurrer that they did not show by specific averment, or unequivocal statement of facts, that plaintiff was conscious of his imminent danger.
[406]*406Plea 3, however, is coupled in assignment with defective plea 4, and so the assignment cannot be sustained. So pleas 5, 6 and 7, and pleas 8, 9, 10 and 11, arel grouped in assignment, and any one of either group being defective, the whole assignment is bad.
But reversible error cannot be imputed with respect to any of the rulings on these pleas for the reason that, in so far as they set up plaintiff’s subsequent negligence, or last clear chance to escape injury, that issue was fully available to defendant under plea 9 and with a diminished burden as to collateral averments; and, in so far as they were merely a traverse of plaintiff’s case, all of their averments were open to proof under the genera] issue. And, in fact, both issues were clearly framed by the evidence, and fairly presented to the jury under the instructions of the court. No prejudice resulted to defendant by reason of the elimination of these pleas, and it is unnecessary to- further discuss their merits.
We do not find that charge 1, refused to defendant, is referred to in any assignment of error.
Charge 2,' refused to defendant, is defective in that it requires a verdict for defendant' upon the predicate solely that upon the discovery of plaintiff’s presence on the track, and his inadvertence to the approaching train, the engineer blew the whistle, and put in operation the appliances at his command to avoid the collision. That ignores that aspect of defendant’s liability based upon the duty of its enginemen to have the train under reasonable control, and to keep a lookout and discover persons who might be upon the track at the point of the collision.
Whether the enginemen were guilty of negligence in these particulars, and, if so, whether it was wanton negligence, in view of the locality and the known hab[407]*407itual use of the track at that point by the public, were questions for the jury on the whole evidence. — So. Ry. Co. v. Stewart, 179 Ala. 304, 60 South. 927, and cases cited. If limited to the other phases of the case, the charge would have been a correct statement of the law.
The failure of the defendant’s engineer, after discovering plaintiff in imminent peril on the track, to use all the means within his power known to skillful engineers to stop the train before plaintiff was injured would, under some tendencies of the evidence, have been a negligent breach of duty. The injury occurred in an incorporated toAvn; and charge 2, given for plaintiff, correctly placed the bnrden of proof as to its freedom from negligence upon the defendant company. — Code 1907, §§5473, 5476.
Other assignments of error relating to rulings upon the evidence and to charges given or refused are not argued, and will not be considered.
On the issue of misconduct on the part of plaintiff and two of the jurymen, and undue influence upon them by association Avith plaintiff during the trial, as presented by defendant’s motion to set aside the verdict, the following facts are shown without dispute:
The jury was impaneled for the trial of this case on Wednesday evening. Two of the jurors, Parker and HaAvkins, were staying at the boarding house of a Mrs. Porter. They occupied the same room, in common with one Smith, a grand juror, and one Speigle, a petit juror not serving in the Turney Gase. On Wednesday night plaintiff applied to Mrs. Porter for board and lodging, and was assigned by her to the room occupied by Parker and Hawkins, which contained three beds. On that night plaintiff slept in the bed with Parker, HaAvkins sleeping in one of the other beds. On Thursday night all three of them slept in the room in dif[408]*408ferent beds. On Friday night the judge charged the jury, and after deliberating about an hour the jury separated for the night and left the courthouse at 11:30 p. m. Plaintiff there joined Parker and they walked to the boarding house together by themselves, stopping for a while on the way. Plaintiff, Parker and Hawkins again slept in the same room that night. On Saturday morning the jury rendered a verdict for plaintiff for $10,500.
.During the course of the trial plaintiff ate all of his meals at the same table with Parker and Hawkins, and many times walked to and from the courthouse with Parker, in company with others. In their room they dressed and undressed in each other’s presence, and shared by turns the use of its simple conveniences. All of them testify that there was no conversation at any time between plaintiff and the jurors in regard to the case on trial.
Plaintiff says he does not remember talking with Parker as to where the latter was boarding before plaintiff went to Mrs. Porter’s. But Parker says: “There was something said about a boarding place, and I told him where I was boarding; my best recollection is he did not say he would go there, but he did go there for supper that night.” Plaintiff says his father directed him to go there, and that he made no request to be placed in the room with the jurors. Mrs. Porter also says she placed him in that room without any request from him, because she had no other available place for him.
Plaintiff was a youth of 19 years, born and raised eight miles from the village of Falkville; and Parker was a neighbor living a mile or so away with whom he was on friendly, but not intimate, terms; while Hawkins lived about eight miles distant from plaintiff. [409]*409Plaintiff says lie was never in court, and never had anything to do with litigation before this time. He has attended eight sessions of school of six months each.
The effect of misconduct on the part of jurors and parties has often been considered by the courts. It is generally held that where a juror has been treated, fed, or entertained by the successful party a new trial will be granted upon consideration of public policy, without regard to the probable effect of such conduct upon the verdict. — Thomp. & Mer. on Juries, § 372; Craig v. Pierson Lumber Co., 169 Ala. 548, 53 South. 803; Bradshaw v. Degenhart, 15 Mont. 267, 39 Pac. 90, 48 Am. St. Rep. 677. But casual' meetings and the interchange of casual and ordinary civilities between a party and a juror during the recesses of the court, no sinister design being apparent, will not ordinarily suffice to avoid the verdict, if the court can clearly see .that it could not have had any effect on the mind or sentiment of the juror. — 2 Thomp. on Trials, § 2559, and cases cited; Alpena Tp. v. Mainville, 153 Mich. 732, 117 N. W. 338; Ga. Central Ry. Co. v. Hammond, 109 Ga. 389, 34 S. E. 594; Hilton v. Southwick, 17 Me. 303, 35 Am. Dec. 253; Vollrath v. Crowe, 9 Wash. 374, 37 Pac. 474; Ford v. Holmes, 61 Ga. 419.
The facts here shown are most extraordinary, and it may well be doubted if judicial annals can present a parallel. The social relation of roommate and bedfellow is necessarily an intimate one, and, when protracted for several days and nights, as here, it is impossible to rationally assume that such a relation has not engendered an interest and a sympathy entirely out of the ordinary, and which will find expression, conscious or unconscious, in any action by either party affecting the interests of the other. We have given very careful consideration to the facts before us, and we cannot es[410]*410cape the conclusion that this verdict, rendered in part, at least, by these two jurors, Parker and Hawkins, cannot be permitted to stand. To hold otherwise would, we think, be an affront to common decency and decorum, and would furnish a demoralizing precedent for the degradation of verdicts and the pollution of the judgments of courts. It would, indeed, imperil the purity of judicial administration, and destroy public confidence in its justice and impartiality — for it is safe to say that no victim of a hostile verdict under such conditions as these could ever be made to- feel that he had had a fair trial by an unbiased jury. As said, per Dowdell, C. J., in Craig v. Pierson Lumber Co., 169 Ala. 548, 552, 53 South. 803, 805: “Aside from protecting the rights of parties in the fair and impartial administration of justice, respect for the courts calls for their condemnation of any improper conduct, however slight, on the part of a juror, of a party, or of any other person, calculated to influence the jury in returning a verdict. So delicate are the balances in weighing justice that what might seem trivial under some circumstances would turn the scales to its perversion. Not only the evil, in such cases, but the appearance of evil, if possible, should be avoided.” See, also B. R., L. & P. Co. v. Drennen, 175 Ala. 338, 57 South. 876.
It is no answer to say that the obnoxious association was not initiated by the choice of the parties. It was continued by them, without objection by either, and without the slightest effort to interrupt it. It was in no sense necessary or compulsory, and it was the plain duty of each of them to avoid it; and its renewal by them each day must be regarded as a new and voluntary offense. If necessary, the jurors should have reported the matter to the court without delay. The impropriety of the continued intimacy was so gross and [411]*411so fundamental that neither the ignorance nor the inadvertence of the offending parties can excuse or palliate it. A party litigant who does not understand the gravity of such an offense must be made wise even at the cost of setting aside his verdict.
The trial court should have set aside the verdict, and directed another trial. Its judgment overruling defendant’s motion in that behalf will be reversed, the mo tion Avill be here granted, and the cause will be remanded for another trial.
It is urged in avoidance of this result that the motion was properly refused because it contained no averment that defendant or its counsel did not discover the misconduct complained of before the rendition of the verdict, and the evidence does not show their ignorance of it. The rule invoked, though generally prevailing, has no force in a case where the misconduct of the juror is instigated, prompted, or shared in by the adverse party himself. It cannot be applied here. — Craig v. Pierson Limber Co., 169 Ala. 548, 553, 53 South. 803.
Beversed, rendered, and remanded.
All concur, except Dowdell, C. J., not sitting.