GARDNER, J.
Suit by the father to recover damages for injuries sustained by his minor son as a result of the alleged negligent conduct of a servant or employee of appellant.
The original complaint consisted of one count for simple negligence, and, after the argument of the case had been concluded, the court permitted the complaint to be amended by adding count 2, which was for subsequent negligence, and by striking count 1, and this over the objection of the defendant (appellant here).
(1) Under our decisions, recovery could have been had for subsequent negligence upon the complaint as [634]*634originally framed. — Alabama Great Southern R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84.
(2) In view of this, and also in the light of our liberal statute of amendment (sections 5367 and 5368 of the Code of 1907), there Avas clearly no error in allowing the amendment of the complaint as indicated.
(3, 4) Count 2 was not subject to any assignments of demurrer interposed thereto. — B. R., L. & P. Co. v. Saxon, Adm., 179 Ala. 136, 59 South. 584.
(5) The demurrer to plea-4, pleaded as it was to a subsequent negligence count, Avas properly sustained. —Johnson v. Birmingham Railway Co., 149 Ala. 529, 43 South. 33.
(6) It is insisted by counsel for appellant that the affirmative charge should have been given in its behalf, for the reason that the appellee based’ his right to recovery on subsequent negligence, and that in order to so recover it Avas necessary to shoAV the one in charge of the engine had knoAvledge of the perilous condition of the child, and that such knoAvledge came to him in time for him to have averted the accident.
As Ave read the brief of counsel it seems to be the insistence that there must be affirmative and positive proof of such actual knowledge to entitle the plaintiff to recover. We do not so understand the rule. There was evidence offered on the part of the plaintiff tending to establish the following: That the child of the plaintiff, five years of age, was standing in the center of the track at or near the street crossing in the village of Mountain Creek, with his face turned towards the north, looking at an outgoing train; that the engine which it is claimed struck the child was a short distance behind him; that the engineer had gone to the station office, and that the fireman was in charge of the engine at the time of the accident; that the train Avas [635]*635also facing north; that the fireman started the engine in motion, and continued to run the train when the boy was caught and struck by the cowcatcher of the engine and dragged clown the track some little distance; that there ivas no obstruction oh the track to prevent the fireman from seeing the boy; and that the fireman was looking straight ahead down the track at the time.
In the case of Southern Railway Co. v. Bush, 122 Ala. 470, 26 South. 168, it is said: “While wantonness on the part of the engineer cannot be predicated on the mere fact that he ought to have seen the deceased on the trestle, or on anything short of actual knowledge, yet this actual knowledge need not be positively and directly shown, but, like any other fact, may be proved by showing circumstances from which the fact of actual knowledge is a legitimate inference. Otherwise, in cases of this character, this fact could never be proved except by the testimony of the engineer himself. Certainly, the facts that the road was straight for a long distance, the view of the track unobstructed, and the engineer was in his seat looking ahead along the track, and there was nothing to prevent him from seeing a person on the track a few hundred feet ahead, are relevant and admissible for the purpose of' proving that he did see such person, and may properly be submitted to the jury on this issue; and while no presumption arises from these facts that the engineer did see the person on the track, yet this may be inferred from these facts by the jury, whose province alone it is to decide the weight to be given to facts legally in evidence and their effect on an issue which they aré admitted to prove.”
In the instant case, with proof tending to show that the child of tender years was standing in the center of the track, with his back to the approaching train, [636]*636looking at the outgoing train, when the fireman in charge of the engine which struck the child, looking straight ahead down the track with nothing to obstruct his view, at 2 o’clock in the afternoon, and with evidence tending to show that the train had been started not a great distance from the child and could have been stopped within a short space, and there was no whistle blown or bell rung, or other warning, we are of the opinion, as under the decisions of this court, the question of subsequent negligence was properly submitted for the determination of the jury. — Southern Railway Co. v. Gullatt, 158 Ala. 502, 48 South. 472; Southern Railway Co. v. Forrister, 158 Ala. 477, 48 South. 69; Southern Railway Co. v. Gullatt, 150 Ala. 320, 43 South. 577; Johnson v. Birmingham Railway Co., 149 Ala. 529, 43 South. 33; Carlisle v. Ala. Great Southern Railroad Co., 166 Ala. 591, 52 South. 341; Southern Railway Co. v. Bush, 122 Ala. 470, 26 South. 169; Southern Railway Co. v. Sheldon, 136 Ala. 191, 34 South. 194.
(7) It is insisted, however, that the evidence, if true, might be such as to warrant a recovery for wanton or willful injury, and that therefore we would not authorize a recovery under a count for simple negligence, citing L. & N. R. R. Co. v. Perkins, 152 Ala. 133, 44 South. 602. The facts in the authority just cited by counsel are entirely different from- those presented by this record, and in the above case it is stated in the opinion that the testimony tended to show solely a willful or wanton wrong, and that the record was entirely silent as to- any fact or inference warranting the conclusion that negligence approximately caused the death of the intestate.
In the instant case we are of the opinion, as previously stated, that the evidence was sufficient to be [637]*637submitted to the jury upon the question of subsequent negligence, and the mere fact, if it be a fact (a question not determined), that there may be a tendency of the evidence which might also support a count for wanton or willful injury clearly would not militate against the right of recovery upon the subsequent negligence count.
(8) It is next insisted that a new trial should have been granted appellant on account of newly discovered evidence, and on account of the surprise at the trial of the cause. Affidavits were offered upon a hearing of this motion showing what is this newly discovered' evidence, and it appears that it was by way of contradiction or impeachment only of the witness for plaintiff. The insistence is made that counsel was surprised at this testimony, for that by their efforts they had only discovered one witness who claimed to have seen the accident, and that this witness, Judge Hill by name, had given a written statement to the law agent of the appellant entirely at war with the testimony he gave on the trial, and that as to the other witnesses, who testified to having seen the accident, it had not learned or had notice of such prior to their testimony. Upon this question, therefore, it appears that this ground for the motion for a new trial depends largely for its solution upon the question of surprise.
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GARDNER, J.
Suit by the father to recover damages for injuries sustained by his minor son as a result of the alleged negligent conduct of a servant or employee of appellant.
The original complaint consisted of one count for simple negligence, and, after the argument of the case had been concluded, the court permitted the complaint to be amended by adding count 2, which was for subsequent negligence, and by striking count 1, and this over the objection of the defendant (appellant here).
(1) Under our decisions, recovery could have been had for subsequent negligence upon the complaint as [634]*634originally framed. — Alabama Great Southern R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84.
(2) In view of this, and also in the light of our liberal statute of amendment (sections 5367 and 5368 of the Code of 1907), there Avas clearly no error in allowing the amendment of the complaint as indicated.
(3, 4) Count 2 was not subject to any assignments of demurrer interposed thereto. — B. R., L. & P. Co. v. Saxon, Adm., 179 Ala. 136, 59 South. 584.
(5) The demurrer to plea-4, pleaded as it was to a subsequent negligence count, Avas properly sustained. —Johnson v. Birmingham Railway Co., 149 Ala. 529, 43 South. 33.
(6) It is insisted by counsel for appellant that the affirmative charge should have been given in its behalf, for the reason that the appellee based’ his right to recovery on subsequent negligence, and that in order to so recover it Avas necessary to shoAV the one in charge of the engine had knoAvledge of the perilous condition of the child, and that such knoAvledge came to him in time for him to have averted the accident.
As Ave read the brief of counsel it seems to be the insistence that there must be affirmative and positive proof of such actual knowledge to entitle the plaintiff to recover. We do not so understand the rule. There was evidence offered on the part of the plaintiff tending to establish the following: That the child of the plaintiff, five years of age, was standing in the center of the track at or near the street crossing in the village of Mountain Creek, with his face turned towards the north, looking at an outgoing train; that the engine which it is claimed struck the child was a short distance behind him; that the engineer had gone to the station office, and that the fireman was in charge of the engine at the time of the accident; that the train Avas [635]*635also facing north; that the fireman started the engine in motion, and continued to run the train when the boy was caught and struck by the cowcatcher of the engine and dragged clown the track some little distance; that there ivas no obstruction oh the track to prevent the fireman from seeing the boy; and that the fireman was looking straight ahead down the track at the time.
In the case of Southern Railway Co. v. Bush, 122 Ala. 470, 26 South. 168, it is said: “While wantonness on the part of the engineer cannot be predicated on the mere fact that he ought to have seen the deceased on the trestle, or on anything short of actual knowledge, yet this actual knowledge need not be positively and directly shown, but, like any other fact, may be proved by showing circumstances from which the fact of actual knowledge is a legitimate inference. Otherwise, in cases of this character, this fact could never be proved except by the testimony of the engineer himself. Certainly, the facts that the road was straight for a long distance, the view of the track unobstructed, and the engineer was in his seat looking ahead along the track, and there was nothing to prevent him from seeing a person on the track a few hundred feet ahead, are relevant and admissible for the purpose of' proving that he did see such person, and may properly be submitted to the jury on this issue; and while no presumption arises from these facts that the engineer did see the person on the track, yet this may be inferred from these facts by the jury, whose province alone it is to decide the weight to be given to facts legally in evidence and their effect on an issue which they aré admitted to prove.”
In the instant case, with proof tending to show that the child of tender years was standing in the center of the track, with his back to the approaching train, [636]*636looking at the outgoing train, when the fireman in charge of the engine which struck the child, looking straight ahead down the track with nothing to obstruct his view, at 2 o’clock in the afternoon, and with evidence tending to show that the train had been started not a great distance from the child and could have been stopped within a short space, and there was no whistle blown or bell rung, or other warning, we are of the opinion, as under the decisions of this court, the question of subsequent negligence was properly submitted for the determination of the jury. — Southern Railway Co. v. Gullatt, 158 Ala. 502, 48 South. 472; Southern Railway Co. v. Forrister, 158 Ala. 477, 48 South. 69; Southern Railway Co. v. Gullatt, 150 Ala. 320, 43 South. 577; Johnson v. Birmingham Railway Co., 149 Ala. 529, 43 South. 33; Carlisle v. Ala. Great Southern Railroad Co., 166 Ala. 591, 52 South. 341; Southern Railway Co. v. Bush, 122 Ala. 470, 26 South. 169; Southern Railway Co. v. Sheldon, 136 Ala. 191, 34 South. 194.
(7) It is insisted, however, that the evidence, if true, might be such as to warrant a recovery for wanton or willful injury, and that therefore we would not authorize a recovery under a count for simple negligence, citing L. & N. R. R. Co. v. Perkins, 152 Ala. 133, 44 South. 602. The facts in the authority just cited by counsel are entirely different from- those presented by this record, and in the above case it is stated in the opinion that the testimony tended to show solely a willful or wanton wrong, and that the record was entirely silent as to- any fact or inference warranting the conclusion that negligence approximately caused the death of the intestate.
In the instant case we are of the opinion, as previously stated, that the evidence was sufficient to be [637]*637submitted to the jury upon the question of subsequent negligence, and the mere fact, if it be a fact (a question not determined), that there may be a tendency of the evidence which might also support a count for wanton or willful injury clearly would not militate against the right of recovery upon the subsequent negligence count.
(8) It is next insisted that a new trial should have been granted appellant on account of newly discovered evidence, and on account of the surprise at the trial of the cause. Affidavits were offered upon a hearing of this motion showing what is this newly discovered' evidence, and it appears that it was by way of contradiction or impeachment only of the witness for plaintiff. The insistence is made that counsel was surprised at this testimony, for that by their efforts they had only discovered one witness who claimed to have seen the accident, and that this witness, Judge Hill by name, had given a written statement to the law agent of the appellant entirely at war with the testimony he gave on the trial, and that as to the other witnesses, who testified to having seen the accident, it had not learned or had notice of such prior to their testimony. Upon this question, therefore, it appears that this ground for the motion for a new trial depends largely for its solution upon the question of surprise. The record does not disclose that the appellant moved the court for a continuance or postponement of the trial, or brought the question of surprise to the attention of the court, during the trial of the cause, or asked that any advantage be accorded it on account thereof. We are of the opinion that appellant has not brought itself within the rule well recognized in this state. In the case of Simpson v. Golden, 114 Ala. 336, 21 South. 990, it was said: “The defendant having failed to move a continuance [638]*638or postponement, and proceeded voluntarily with the trial, he was in no position, after the case was decided against him, to ask for a new trial on the ground of such alleged surprise. Having speculated upon the chances of a favorable result upon the evidence then before the court and lost, he cannot now demand another trial that he may introduce other evidence not available to him on the, first trial.”
There was, therefore, no error in overruling the motion for a new trial on this ground. — Simpson v. Golden, supra; Bayonne Knife Co. v. Umbenhauer, 107 Ala. 496, 18 South. 175, 54 Am. St. Rep. 114; McLeod v. Shelly Mfg. & Imp. Co., 108 Ala. 81, 19 South. 326; McKissack v. McClendon, 133 Ala. 558, 32 South. 486.
(9) It is further urged that a new trial should have been granted because the verdict was contrary to the evidence. The rule governing such, questions has been oftentimes quoted from the familiar case of Cobb v. Malone, 92 Ala. 630, 9 South. 738, and upon the consideration of the evidence upon which this trial was had, and in the light of this rule, we are not prepared to say that the trial court should be reversed for refusing a neAv trial on this ground. Upon a consideration of this motion upon this ground the proof offered by affidavits, but which was no part of the testimony on which the trial was had, cannot, of course, be considered.
(10, 11) Charge 2 ignored that part of the evidence going to show that the injured person was at a public highway crossing, and charge 3 ignored that tendency of the evidence going to support subsequent negligence, and they Avere therefore properly refused.
(12) Charge 4 Avas properly refused, as there was evidence tending to shoAV that at the time the child Avas [639]*639struck by tbe engine he wheeled and caught hold of the pilot of the engine in order to save himself.
(13) Charge 6 was properly refused, because it limited the liability to the fact of the child being seen by the fireman at the time of the infliction of the injury and ignored that part of the evidence tending to show that the child was dragged some distance above the crossing before he was actually injured.
(14) Charge 7 was properly refused, because it limited recovery to the failure of the fireman to do- what a reasonably prudent man would have done. — Brown v. St. L. & S. F. R. R. Co., 171 Ala. 310, 55 South. 107.
Finding no reversible error in the record, the judgment of the court below is accordingly affirmed.
Affirmed.
Anderson, C. J., and Mayfield and Somerville, JJ., concur.