HARALSON, J.
1. The case was tried on counts Nos. 10 and 11 oí the complaint. They present practically the same question as raised on the trial and here discussed — whether the switchman in charge of the car that injured plaintiff was guilty of any negligence in not keeping a proper and sufficient lookout, and in not stopping the car in time to avert the injury. The defendant taking issue on these counts, pleaded specially to them the contributory negligence of the plaintiff.
2. Charges numbered 8 and 10 asked by defendant were properly refused. This brakeman was, for the time, so to speak, the engineer of the descending car. He and no other person had control over it, and that was his duty. It has been held that engineers, or persons in control of an engine or car, “should always be on the lookout for obstructions (whether of persons or things), and when discovered, no matter when or where, should use all the means within their power to escape the impending danger, or to avert the threatened injury ; and less care than this is not due diligence.” — S. & N. Ala. R. R. Co. v. Williams, 65 Ala. 78. The rule of the company required “each employe * * * to lookout after, and be responsible for, his own safety, as well as to exercise the utmost caution to avoid injury to his fellow servants, especially in the switching of cars, and in all movements of trains. ” • The in j ury to plaintiff occurred in the night time, in the switching yard of defendant in the city of Birmingham, which was interlaced with switch tracks. If true, as the charges postulate, that the brakeman was under no duty, to keep a speeial lookout for persons on the track, yet, if a proper lookout for obstructions of any kind, which he was bound to keep, would have revealed a person on it, in a perilous condition, the duty would have arisen to save him if practicable. The charges were calculated to confuse and mislead the jury. The question of negligence [282]*282or not, as averred in the complaint, was, under the all surrounding circumstances, one proper for the determination of the jury, under proper instructions.
In this connection it may be said that there was no error in the two written charges given by the court at the instance of the plaintiff. They hypothesized the averments of counts 10 and 11, on which the case was tried, and on which defendant toolc issue. If the facts averred in these counts were proved to the satisfaction of the jury, the plaintiff was entitled to a verdict.
3. Charges 12, 14 and 15 raise the question of contributory negligence of the plaintiff. In Cook v. C. R. R. & B. Co., 67 Ala. 533, this court quoted with approval 'what is said in Wharton on Negligence, section 304, viz. : “As a rule, therefore, we may say that a person is not chargeable with contributory negligence, who, when unwarned peril comes on him, suddenly acts wildly and madly. For persons in great ‘peril are not required to exercise all the presence of mind and care of a prudent, careful man; the law makes allowances for them, and leaves the circumstances of their conduct to the jury.” Such a person, as was said in the case cited, “will be presumed, in’ the absence of any evidence throwing light upon the matter, to have observed that care and precaution which the law requires, as instinct would prompt him to use diligence in saving his life.” The presumption is always indulged, when one’s con- ■ duct or motive is to be inquired about, that if sane and conscious, he had the highest motive to take the necessary precaution to save his life, or insure his safety, and that he so acted. — Penn. R. R. Co. v. Weber, 76 Penn. St. 157; s. c. 18 Am. Dec. 407. The evidence tends strongly to show that the plaintiff was in a conscious condition of peril, had just received a blow from a broken link of the car he attempted to couple, was about to faint from the effects of the injury he received, and was becoming unconscious: It further tends to show that he stumbled and fell upon the track where he was run over, while in an unconscious condition. He testified he did not know when he fell, because he was staggering at the time, and when he became conscious, he looked around and saw that his legs had been mashed off; that he did not know when the car ran over him, [283]*283and did not feel it when it struck him, because he was unconscious. These charges ignore the peril and the state of mind therefrom, in which the plaintiff found. himself at the time he was struck by the piece of link, and’whether he went upon the track unconsciously or not, and were, on that account, if for no other good reason, properly refused.
The court in its charge to the jury placed the law on this subject properly before them, when he said, “If he, the plaintiff, was hit in the side by a piece of iron, and the force of the blow caused him to step back upon track 5, or if he through a natural impulse, caused by the blow in front, threw himself backwards upon the track in a moment of mental perturbation or excitement, why then his stepping upon the track could not be- said to be a voluntary act on his part, but would be an incident to his attention to his business; and if he then fell faint upon the track, not having the time or ability to get off of it, such conduct on his part would not be contributory negligence.” Again, the court charged, that “if he voluntarily stepped upon that track for any reason whatsoever, except that he was caused to be there by the blow that he received, then his stepping upon that track would be contributory negligence which would prevent his recovery.” And still again : “If he was struck a blow by the link, but through inadvertence, through forgetfulness, or through anything of that sort, he stepped back upon track number five, and' then was hurt, and there fainted upon the track, and then was run over,' then he was guilty of contributory negligence in being on that track, and would not be entitled to recover. A man may be unconscious upon a tz*ack and be guilty of contributory negligence in being there. It is not lying on the track in an unconscious condition that determines whether a person is guilty of contributory negligence in being there, but the circumstances attendant upon going upon the track, before he became unconscious, determine whether or not he is guilty of contzdbutory negligence.” These charges contain no error, certainly of which de-‘ fendant can complain. — Helton v. Ala. Mid. R. R. Co., 97 Ala. 275, 284.
4. -Charges 3, 4, 5 and 9, which were affirmative instructions for defendant, were, for the most obvious reasons, appearing from what has already been said, properly refused.
[284]*2845. There were numerous exceptions reserved to the admission of evidence. We can not review them without extending this opinion to an unnecessary length. After careful consideration, we discover no reversible error in any of these exceptions.
6.
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HARALSON, J.
1. The case was tried on counts Nos. 10 and 11 oí the complaint. They present practically the same question as raised on the trial and here discussed — whether the switchman in charge of the car that injured plaintiff was guilty of any negligence in not keeping a proper and sufficient lookout, and in not stopping the car in time to avert the injury. The defendant taking issue on these counts, pleaded specially to them the contributory negligence of the plaintiff.
2. Charges numbered 8 and 10 asked by defendant were properly refused. This brakeman was, for the time, so to speak, the engineer of the descending car. He and no other person had control over it, and that was his duty. It has been held that engineers, or persons in control of an engine or car, “should always be on the lookout for obstructions (whether of persons or things), and when discovered, no matter when or where, should use all the means within their power to escape the impending danger, or to avert the threatened injury ; and less care than this is not due diligence.” — S. & N. Ala. R. R. Co. v. Williams, 65 Ala. 78. The rule of the company required “each employe * * * to lookout after, and be responsible for, his own safety, as well as to exercise the utmost caution to avoid injury to his fellow servants, especially in the switching of cars, and in all movements of trains. ” • The in j ury to plaintiff occurred in the night time, in the switching yard of defendant in the city of Birmingham, which was interlaced with switch tracks. If true, as the charges postulate, that the brakeman was under no duty, to keep a speeial lookout for persons on the track, yet, if a proper lookout for obstructions of any kind, which he was bound to keep, would have revealed a person on it, in a perilous condition, the duty would have arisen to save him if practicable. The charges were calculated to confuse and mislead the jury. The question of negligence [282]*282or not, as averred in the complaint, was, under the all surrounding circumstances, one proper for the determination of the jury, under proper instructions.
In this connection it may be said that there was no error in the two written charges given by the court at the instance of the plaintiff. They hypothesized the averments of counts 10 and 11, on which the case was tried, and on which defendant toolc issue. If the facts averred in these counts were proved to the satisfaction of the jury, the plaintiff was entitled to a verdict.
3. Charges 12, 14 and 15 raise the question of contributory negligence of the plaintiff. In Cook v. C. R. R. & B. Co., 67 Ala. 533, this court quoted with approval 'what is said in Wharton on Negligence, section 304, viz. : “As a rule, therefore, we may say that a person is not chargeable with contributory negligence, who, when unwarned peril comes on him, suddenly acts wildly and madly. For persons in great ‘peril are not required to exercise all the presence of mind and care of a prudent, careful man; the law makes allowances for them, and leaves the circumstances of their conduct to the jury.” Such a person, as was said in the case cited, “will be presumed, in’ the absence of any evidence throwing light upon the matter, to have observed that care and precaution which the law requires, as instinct would prompt him to use diligence in saving his life.” The presumption is always indulged, when one’s con- ■ duct or motive is to be inquired about, that if sane and conscious, he had the highest motive to take the necessary precaution to save his life, or insure his safety, and that he so acted. — Penn. R. R. Co. v. Weber, 76 Penn. St. 157; s. c. 18 Am. Dec. 407. The evidence tends strongly to show that the plaintiff was in a conscious condition of peril, had just received a blow from a broken link of the car he attempted to couple, was about to faint from the effects of the injury he received, and was becoming unconscious: It further tends to show that he stumbled and fell upon the track where he was run over, while in an unconscious condition. He testified he did not know when he fell, because he was staggering at the time, and when he became conscious, he looked around and saw that his legs had been mashed off; that he did not know when the car ran over him, [283]*283and did not feel it when it struck him, because he was unconscious. These charges ignore the peril and the state of mind therefrom, in which the plaintiff found. himself at the time he was struck by the piece of link, and’whether he went upon the track unconsciously or not, and were, on that account, if for no other good reason, properly refused.
The court in its charge to the jury placed the law on this subject properly before them, when he said, “If he, the plaintiff, was hit in the side by a piece of iron, and the force of the blow caused him to step back upon track 5, or if he through a natural impulse, caused by the blow in front, threw himself backwards upon the track in a moment of mental perturbation or excitement, why then his stepping upon the track could not be- said to be a voluntary act on his part, but would be an incident to his attention to his business; and if he then fell faint upon the track, not having the time or ability to get off of it, such conduct on his part would not be contributory negligence.” Again, the court charged, that “if he voluntarily stepped upon that track for any reason whatsoever, except that he was caused to be there by the blow that he received, then his stepping upon that track would be contributory negligence which would prevent his recovery.” And still again : “If he was struck a blow by the link, but through inadvertence, through forgetfulness, or through anything of that sort, he stepped back upon track number five, and' then was hurt, and there fainted upon the track, and then was run over,' then he was guilty of contributory negligence in being on that track, and would not be entitled to recover. A man may be unconscious upon a tz*ack and be guilty of contributory negligence in being there. It is not lying on the track in an unconscious condition that determines whether a person is guilty of contributory negligence in being there, but the circumstances attendant upon going upon the track, before he became unconscious, determine whether or not he is guilty of contzdbutory negligence.” These charges contain no error, certainly of which de-‘ fendant can complain. — Helton v. Ala. Mid. R. R. Co., 97 Ala. 275, 284.
4. -Charges 3, 4, 5 and 9, which were affirmative instructions for defendant, were, for the most obvious reasons, appearing from what has already been said, properly refused.
[284]*2845. There were numerous exceptions reserved to the admission of evidence. We can not review them without extending this opinion to an unnecessary length. After careful consideration, we discover no reversible error in any of these exceptions.
6. Motion was made for a new trialAll the questions involved and all the facts which' surrounded the parties at the time of the injury — the time and character of the night; the light afforded by the electric lights ; the conduct of- the brakeman, Bagley, who handled the descending car ; the conduct of the plaintiff; the distance at which an obstacle, such as the plaintiff was, lying on the track could have been seen by the exercise of proper caution ; the distance within which the ear might have been stopped, after the plaintiff might have been “seen, etc., — appear to have been fairly and intelligently presented to the jury, and they found a verdict, with which we are disinclined to interfere.
7. There is nothing in the motion to exclude the evi-. dence offered by the plaintiff, because of a variance between the pleadings and proof. The complaint charged the negligence under & videlicet to one Joe Bagley. The witnesses referred to him as Joe Bagby. There, was but' one brakeman on the car that did the -damage. No question was raised as to any mistake in his name, while the evidence was being brought out. The court in its charge to the jury referred to the brakeman as Bagley. The only purpose in naming the negligent employe is to give a reasonable opportunity to defend by identifying the negligent agent, and, as we have held, this was a material averment. The court asked the defendant’s counsel, when he made the motion, “Do you hold that the evidence was not admissible under the complaint?” Counsel answered, “Yes, sir.” “Defendant’s counsel, in support of his motion, made an argument, but did not in such argument, or otherwise, at any time during the trial, say anything tending to call the attention of th,e court to any variance, beyond what is hereinabove set out in his -statement of his motion and his answer to the question propounded by the court.”
If the defendant, on the motion submitted to exclude the plaintiff’s evidence; relied upon a variance between the declaration and the proof, it was its duty to point out in what the variance consisted, so as to enable the [285]*285court to pass intelligently on the question, and to enable tbe plaintiff to amend Ms pleading to conform to the evidence, and thus avoid defeat upon a point in which there was in this case no real merit; and having failed so to do, he must be deemed to have waived it. — Libby v. Scherman, 146 Ill. 540, 549; L. S. & M. R. Co. v. Ward, 135 Ill. 511; St. Clair Co. Ben. Soc. v. Fietsam, 97 Ill. 474, 480; Supervisors v. Deeker, 30 Wis. 629; Bell v. Knowles, 45 Cal. 193; Merritt v. Seaman, 6 Barb. 330; Underhill v. Pomeroy, 2 Hill (N. Y.), 603; 28 Am. & Eng. Encyc. of Law, 53, 61.
We have examined such of the questions requiring attention, as have been insisted on in argument. Other errors assigned, from what has been said, need no special notice.
Affirmed.
Justices McClellan and Head dissent on the question of variance, as expressed in the last point, — numbered 7, — considered in the opinion.