HARALSON, J.
— 1. The case though simple as to the real facts, is distressingly cumbered with pleadings, covering some 55 pages of the transcript. Nearly everything attempted was demurred to on both sides, and after all, there was no judgment on any of the demurrers to the counts of the complaint, to- the pleas, or replications. We have a case presented, therefore, where we must ascertain on what definite; issues it was really tried.
2. The real facts stated concisely are, that Lawrence, the. deceased, wa,s an employe in the defendant’s yard at Decatur or New Decatur, whose business it was to make up trains; that one Ben McDermott was the engineer in charge of the engine and tender which ran against deceased; that there were in the yard, the main track and some seven other side or switch tracks on the west side of the main track; that deceased was standing a very few feet on the east of the main track, with a switch list in his hand, at the time McDermott was coming south down the main line, with his engine and tender attached, the tender running foremost, moving at the rate of some six miles an hour, and that deceased, —as McDermott testified, — when the tender wasi in three or four feet of him, made a movement from the place1! at which he was standing, which was a safe one, toward the track down which the engine and tender were, coming, and ran and jumped on the track; was knocked down or fell, was caught under the tender and rolled some distance down the track. When taken out, as other evidence shows, he was so badly injured, he died soon afterwards.
[479]*479The theory of the complaint is, that the death was not caused by knocking deceased down, for as contended, his death was not caused by that act, but came from his afterwards being rolled over or pushed along the track by the moving tender; that the engineer discovered his peril but failed to reverse his engine, sand the track and apply the brakes soon enough before deceased was knocked down but not killed, and by reason of such failure, and a failure to use preventive means afterwards, the deceased was dragged and fatally injured.
The complaint set out in variant forms in many counts, the negligence of the defendant’s engineer, in his failure to do and observe this, that and the other alleged duty, whereby the injury resulted; and the pleas, in extended form, set up the negligence of the deceased in leaving a place of safety and going upon the main track in the face, of peril to his life, in consequence of which he contributed proximately to his own destruction.
The plaintiff, first denying the allegations of these pleas, replied specially: (2nd) “After said deceased was by those on the engine observed on the track, those in charge of the engine, failed to use all proper means to stop the'engine, and by reason of such failure, the said Joe Lawrence met his death.” The third, fourth and fifth replications to the pleas were demurred to, and as appears by a shorthand rendering, these demurrers were sustained. The demurrers must, therefore, be treated as waived. As to these replications it may he said they were of no significance in the trial of the cause and no notice of them. may be here taken, since all the matters set up in them were fully gone over in the evidence introduced.
The sixth replication, upon which much stress is laid, was that “The said engineer after discovering the peril of said Lawrence, failed to reverse the engine, sand the track and apply the brakes until the said Lawrence was knocked down but not killed, and by reason of such failure, the said Lawrence was dragged, and fatally injured.” These two replications (the second and sixth) treat of no more than simple negligence.
[480]*480The defendant, joining issue on the second replication, rejoined specially to the sixth, “that when plaintiff's intestate stepped upon the track, and between the rails of the track on which said engine was, said engine was so close to said Lawrence that defendant's engineer could not stop the same by any appliances within his power in time to avoid hitting said Lawrence.” The plaintiff moved to strike this last rejoinder, which was granted, but the ruling is shown only in the judgment entry and not in the bill of exceptions, and there is no formal judgment rendered, as shown, on the motion.
The 8th, 10th, 11th and 12th counts in the complaint were framed to set up wantonness on the part of the engineer in causing the death of the plaintiff’s intestate. They were demurred to on many grounds questioning their sufficiency, but as no judgment was rendered on the demurrers, they must be treated as waived. We have, then, several counts setting up, simple negligence, and these four, intended to set up wantonness on the part of the engineer in inflicting the injury on deceased. We have heretofore attempted to malee plain the necessary averments of wantonness or willfulness, or luckless indifference to probable consequences, with a knowledge and present consciousness that the injury would probably result. In A. G. S. R. R. Co. v. Burgess, 119 Ala. 563, we said: “Of course, an intent to injure on the part of defendant’s employe is not essential to liability, notwithstanding contributory negligence. It is enough if they exhibit such wan-tonnesK and recklessness as to probable consequences as implies a willingness to inflict injury, or an indifference as to whether injury is inflicted, though they may not have any such affirmative purpose.”—B. R. & E. Co. v. Pinckard; 124 Ala. 372. Again, to1 make the matter plainer, if possible, it was said in the late case of L. & N. R. R. Co. v. Brown, 121 Ala. 226: “To the implication of willfulness, or wantonness, or reckless indifference to probable consequences, it is essential that the act done or omitted should be done or omitted with a knowledge and a present consciousness that the injury would-probably result; and that this consciousness [481]*481is not to' be implied from mere knowledge of tlie elements of the dangerous situation, for this the party charged may have and yet act. only negligently and inadvertently in respect of the peril, but it must be alleged, either in terms, that he willfully, or wantonly, or with reckless indifference failed to discharge the duty resting upon him, or that he was at the time conscious that his course would probably result in. disaster.” When tested by these rales, the counts referred to were lacking in necessary averments to charge wantonness, Avill-fulness, or reckless indifference to consequences, such as under the rules above stated amount to and are the equivalent of Avantonness or Avillfulness. They charge no more than simple negligence.
The case: must be here considered on the counts in the complaint charging simple negligence and the general issue thereon; upon the pleas of contributory negligence and issue thereon, or rather, as nar-roAved from these, on issue joined on the second special replication above, and on issue joined on the rejoinder to the sixth special replication, each as set out above.
3. There Avere but tAVO witnesses avIio saw Lawrence at the time he was stricken by the engine’s tender. The first of these, examined by the plaintiff, was McDer-mott, the engineer in charge of the engine at the time, aa'Iio testified that he had been south that morning with a sanitary train and had returned to the yard office, and was on his way to the yard to' get breakfast and leave his engine; that Lawrence passed the engine going south, and stopped on the east side of the main track, and about three or four feet from its east rail AA'ith his face toAvards the Avest; that he had a SAvitch list in his hand looking doAvn at it; that the engine was running, as he passed down Avith the tender in front, about six miles an hour, and his bell Avas ringing; he was in'his place on the east side of the cab, leaning out. of the Avindow on his left arm AA’ith his right hand on the. throttle, — used to shut off and open steam; it Avas daylight, about 6 :30 o’clock A. M. and there was nothing obstructing his view; no one Avas on the east side of the track except Lawrence, wlm Avas then about [482]*482one lrandred and seventy-five feet below the office. Tlie witness, to use bis own language, stated: “I got within three or four feet of Mr. Lawrence, when he made a movement towards the track. Until that time he was standing in a place of safety, and had he stayed there, he would have been in no danger. He was looking at his switch card. He ran and jumped right on the track. I blew the whistle, shut off steam and reversed the engine. It was not possible for me, with the appliances at my command, to have stopped that engine from the time that he stepped upon the track until the train came in contact with him. It could not have been stopped before that time. I did everything in my power to avoid coming in contact with him, after I saw him step upon the track. There was no appliance, contrivance or equipment which could have been used by me that was not used, that would have avoided coming in contact with him, after I saw him step upon the track. At the speed at which I was going, that engine was stopped as soon as it could have been stopped by the use of the appliances at my command. On this occasion there were not numbers of employes of defendant frequenting those tracks, or about the track where my engine was. There was no one else there but Lawrence that I saw. I-had a good view of the track and could see a quarter of a mile off. Immediately after discovering Lawrence’s peril, there was nothing that could have been done by me that was not done, that would have stopped the engine sooner or avoided coming in contact with him. As I was approaching the place where Lawrence was, he did not look up, but kept his head down looking at the paper. I did not fail to resort to the instrumentalities at my command, as early as I could, and was not conscious of failing to do so. When he stepped on the track, I shut off steam, applied the brakes, blew the whistle and reversed the engine. I did it as quickly as it could be done. * * * I ran about 60 feet after I discovered him on the track. I struck him that quick [snapping finger^]' * ‘x' * I had no knowledge or notice that Lawrence was going to step on the track, before I saw him do [483]*483so. * * * Tlie first knowledge or intimation I had of it was, when he suddenly looked up from his book and started a,cross. This was the first knowledge I had of it. * * * Lawrence had no duty to perform that requii'ed him to get upon the foot-board of my engine (tender).” It is not pretended the engine was not well equipped.
The only other eye-witness to the accident was E. M. Story, an employe of tin1 defendant who worked in tin1 shops, examined by defendant, whose evidence is not in conflict with that of plaintiff’s witness, Mc-Dermott. He testified: “I was on my way to the shops walking through the yard between the main track and track No. 1 (the first on the west of the main track). When I passed the telegraph office, McDer-mott’s engine was standing by the office. I Avent about 200 feet I suppose, before Í stopped. I heard a whistle. I do not recall about the bell, but I heard the alarm whistle, and turned to look back to see if I was clear myself. I Avas someAAdiere between seventy-five and a hundred feet from the engine, Avhen I looked back. I suav a man right in front of the? engine, making a scramble for the foot-board, or something of the kind. His foot struck the foot-board, but he slipped and fell and rolled under. I don’ tknoAv Avhat his head struck Avhen he rolled under. 1 do not know that his head struck anything. The foot-boaifl ran up OArer him when he fell, and lie ivent under the foot-board. I don’t know AA’hetheT his head struck the rail or not. I don’t think his hand ewr grasped the grab rail, but he AA'as grabbing at it. [There Avas a hand rail extending around the tender.] His foot struck the foot-board, but it slipped. There might have been sleet oh the foot-board, as it had been raining a little, and was very cold. * * * The engine was moving backward, the tender in front, and he attempted to grab the handhold, but I don’t think he ever grasped it. His foot slipped and lie Avent doAvn in front of the engine. My attention AA'as attracted by the alarm whistle, and I looked around to see if I was clear myself.When I saw the man he was right in the middle of the track, right in front of the engine, between the. rails. Just as I turned [484]*484m,y head, he made a scramble for the foot-board and slipped. He was right at the engine in the middle of the track. I-Iis right foot hit the foot-board. He tried to grab the hand rail. It was all done at once. He was struggling for a foothold and a handhold. I was almost in front of him, and he was on the track and I was between the tracks. He had a lantern on his arm. It seems to me he had a paper in his other hand, but I could not say for certain. * * * When he missed his handhold and fell, his head fell east, and he was rolled under ■ the foot-board. I don’t know how high the foot-board was from the rail, — some six inches I reckon. * When I heard the signal and saw the struggle, the engine was not a hundred feet from Oakley’s office. * * * When I looked around the engine was of course where they picked him up. * * * They stopped as soon as they could. * * He fell on the foot-board.”
M. D. Watts, another engineer, of twenty years’ experience, examined by defendant, testified that if a light engine, such as this one was, were going at the rate of six miles an hour, and a man should suddenly spring on the track, about three or four feet in front of the engine, and the engineer should be looking out of the cab window and see him, when he made the motion for getting on the track, and using all the appliances in his power, the engine would run seventy-five or eighty, possibly between eighty and a hundred feet before it could be stopped.
J. A. Ourlee, an engineer, examined by plaintiff, testified that when one is in as close proximity to a moving engine as Lawrence was shown ü> be, the necessary steps to be taken by the engineer would be to reverse the engine, cut off steam and apply the brakes, which would require both hands, and that sand is used in cases of emergency, when he desires to make a quick stop; that six miles an hour is going very slow, and by the use of these appliances, he ought to stop in fifteen inches or two feet.
The evidence of these two engineers, so much in conflict, is pertinent, as tending to show negligence or the [485]*485want of it on the part of the engineer in failing to stop his engine after discovering the peril of the deceased,- and it was a matter for the jury to determine, under all the evidence, whether the engineer was guilty of negligence.
4. It is- manifest, under all the evidence, if the engineer, according to his testimony and that of said M. I). Watts, could not have stopped his engine short of the time and place it was stopped, that he was not guilty of negligence. But, if, on the other hand, according to the testimony of J. A. Ourlee, the engineer could, with the appliances at hand, have stopped his engine within fifteen inches or two feet, and he failed to do so, but ran on some sixty or more feet, and deceased after falling or being knocked under the tender, was rolled and dragged that distance and thereby killed, as the evi-idence tends to show, and his death was not caused by falling or being knocked under the tender, as the evidence might authorize them to infer, then, it would be for the- jury to determine from this evidence, and all the evidence in the case, whether the defendant’s employe was guilty of negligence after becoming aware of the peril of the intestate, and the general charge could not properly have been given for defendant.
5. Conceding that there was error in not allowing the witness, McDermott, to answer the following question propounded to him on the cross by defendant: “At the, time [of the injury to deceased] had not your crew been relieved to go to breakfast?” — still, it'was error without injury, since the witness afterwards testified, “My crew was relieved, except Frazier [who was fireman] and myself at 6:15.”
6. The witness was also asked by the defendant: “At the time you were going to the shops [which were on the south] with the engine for the purpose of getting breakfast-, was any switchman required to be on the foot-board?” The plaintiff objected for the reason that there is a rule to that effect, and the rule was the best evidence. The witness, however, answered that no rule of the company required him to have a switchman on the foot-board of the tender. There was no injury here to defendant.
[486]*4867. The plaintiff offered in evidence rules 104 and 104 a, of the company, — tlie first one being, — '“When a train is being pushed by an engine (except when shifting and making up trains in yards) a flagman must be stationed in a conspicuous position on the front of the leading car, so as to perceive the first sign of danger, and immediately signal the ■ engineerand the other, “The proper position for at least one switchman when riding on a light engine in the yard, is on front of the engine in the direction of its moving.” The motion for the exclusion of these rules was based on the objection to each, that it was irrelevant and immaterial. It is manifest that rule 104, not counted on specially in the complaint, has no application to a light engine moving in the yard of the defendant as this one was. doing at the time, and the objection by defendant to its introduction in evidence should have been sustained. But rule 104 a does apply to such engine under the circumstances shown, and as the disobedience of that rule was counted on in the complaint, it was admissible in evidence and the motion to exclude it was properly overruled.
8. The question propounded to the witness, McDer-mott, the engineer', — “Whether or not your engine was wantonly or recklessly propelled against said Lawrence,” was properly disallowed, even if wantonness or recklessness had been charged. In such a case, he could not properly have been interrogated as to his private intentions or motives in operating his engine, but merely as to facts tending to show his motives.
9. There was no evidence that Lawrence stepped upon the foot-board of the tender, and there was no error, therefore, in refusing to allow the defendant to ask the witness, “If a switchman had been upon the footboard of that train, if his presence could have prevented Lawrence from stepping upon the foot-board?”
10. Nor was there error in refusing to allow said witness to answer the next question: “If a switchman had been standing upon that foot-board at the time, would the presenceof the switchman there, have prevented the engine from coming in contact with Law-[487]*487rente ?” It calls for a conclusion of tbe witness, and the effect, without more, of the bare presence of the switch-man on the board.
11. This witness was further asked if he had any reason to believe that Lawrence was going to step upon the track. Waiving the objection that the question called for the mere uncommunicated belief of the witness, he had just stated, “I had no knowledge or notice that Lawrence was going to step upon the track before I saw him do so.” He had also stated that when he got within three or four feet of Lawrence, he made a movement toward the track. “Until that timé he was standing in a place of safety, and had he stayed there, he would have been in no danger. He was looking at his switch card. He ran and jumped right on the track.” Moreover, the witness in seeming disregard of the ruling, immediately thereafter stated, — “The first knowledge or intimation I had of it was when he suddenly looked up from the book and started across. This was the first knowledge I had of it.” The ruling was not improper.
12. The witness, Curlee, for the plaintiff, shown to be an expert engineer, was asked, “If a man thus struck and knocked down, is dragged, say, 50 feet, — is there anything under the tender, ordinarily, to- cause serious and fatal injuries?” He replied, “The brake-beam would.” Defendant objected to> the question when asked, and, afterwards moved to exclude the answer, on the ground, in substance, that it was not shown that the construction of engines are all alike and the construction of this particular engine is not inquired into. The evidence tended to sIioav that the fatal injury 'was not inflicted by the mere collision with the tender. It tended to show that the engine, had a brake-beam. The question did not seek to sIioav that the engine Avas of improper construction. It Avas not improper to- inquire, if ordinarily there is anything under a tender to cause serious injuries; and if there was no brake-beam under the tender, that fact might easily have been called out by defendant on the cross.—Blackman v. Collier, 65 Ala. 312.
[488]*48813. The objection to the hypothetical question 'propounded by plaintiff to Dr. Murray, on page 91 of transcript, was untenable. There was evidence tending to show the facts hypothesized, and under1 the pleadings the fact was relevant.—Black v. Milwaukee St. R. Co., 27 L. R. A. 365; Montgomery v. L. I. R. Co., 55 Hun. 611, and other cases cited on brief of counsel for plaintiff.
14. The defendant on the cross-examination of plaintiff’s witness, Frazier, sought to show that McDermott’s engine which struck Lawrence, made sufficient noise for Lawrence to have heard it, at the time he got in its way and was killed, and he was, therefore, inexcusable for getting in its way in the manner he did. Mc-Dermott testified that there Avere other engines switching along there, about that time, and bells were ringing and whistles were blowing in the vicinity. Lawrence’s duty, as shown, was to make up trains, and he had his engine for the purpose. On the re-direct examination of Frazier, to rebut defendant’s evidence, thus brought out by Frazier, Frazier1 stated “that he did not know that a train was being made up on the west track, but they were switching cars. This made some noise, an ordinary noise. Lawrence’s switch5 engine would puff up to a car and then puff away again; he did not know thatthe bell was xinging; that Lawrence’s, switch engine was about as heavy as our engine, (both about the same size and capacity).” The defendant objected to this answer because irrelevant and immaterial, and assigns as error, that part of the answer placed in parentheses. Its objection went to the whole answer, and not to that pa,iff of it parenthesized. It did not object to that poifficn separately, and it cannot be allowed to assign as error that to which it did not object, nor anything less than that to which it did object.
15. The evidence is somewhat in confusion as to where the line between New Decatur and Decatur runs, but its tendency ivas most strongly to show that the injury occurred north of this line, and not within the corporate limits of New Decatur. The plaintiff was allowed to introduce, against the objection of defendant, [489]*489ordinance 89 of New Decatur, which forbade the running of a train at a greater rate of speed than four miles a,n hour. Preston, an engineer, surveyed the line, and stated that the line between the two corporations was 254 feet south of the center of Oakley’s office. All error, however, in the introduction of this ordinance, if any existed, was after-wards eliminated by the court, in charge 58, given to the jury, which instructed them that if they believed the evidence, this boundary line of New Decatur commences 254 feet below the center of Oakley’s office, and that if the engine struck Lawrence north of that line, then the ordinance introduced had nothing whatever ü> do with the casé, and they should not regard it in their deliberations.
16. There was error in allowing Mrs. Lawrence, the widow of deceased, to^ testify that the size of deceased’s family was herself and a child.—Ala. M. R. R. Co. v. Jones, Admx., 114 Ala. 519; s. c. 121 Ala. 113.
17. Frazier, testifying for defendant, was asked by plaintiff, on the cross, about a caution board, that had written on it the; words, “Keep off the track.” He was further asked, “Was that written there for the employes or others?” Defendant objected, but on what ground is not stated. The witness replied, “I suppose for any one.” If it were conceded that the question Avas improper, the objector should have stated the ground of objection, and, at any rate, the answer was not injurious to defendant.
18. Charge given for the plaintiff indicated by the letter C. was erroneous, in that it fails to postulate that the negligence of the engineer therein hypothesized, produced the injury complained of. The .negligence therein hypothesized, if true', may not have caused the death of deceased.
The manifest tendency of charge H. given for plaintiff Avas to mislead the jury to the erroneous conclusion that Lawrence had the right to presume that there Avas a SAvitcliman on the foot-board of the tender, and for that reason he was guilty of no negligence in going on the track, and this, when all the evidence shows he saw the approaching engine and tender when he went [490]*490upon the track, and knew as well as the engineer did, whether there was a switchman there or not. The charge should not have been given. We discover no' reversible error in the other charges given for plaintiff.
19. The defendant requested a great number of charges, about forty of which were given, and nearly an equal number refused. Those given seem to cover every phase of the case, and were quite as favorable, if not more so, than could have been demanded. We do not desire to go to the great and unnecessary length of reviewing each of these refused charges. They have been considered and we find no reversible error in them. Ilaviug reference to the pleadings and evidence, it is sufficient to say of them, that they are either misleading, argumentative1, abstract or positively erroneous.
For the errors in the admission of rule ,104 and the giving of the two charges O. and H. for plaintiff, the judgment of the court is reversed and the cause remanded.
Reversed and remanded.