COLEMAN, J.
The appellee, Woods, instituted the present action in case to recover damages for personal injuries alleged to have been sustained on the 29th of March, 1892. The complaint was filed March 25th, 1893, and as originally framed contained but one count. To this defendant filed a demurrer on May 23d, 1893. On June 22d, 1893, the plaintiff amended his complaint. The defendant filed a motion t.o strike the complaint as amended from the file, on the ground that the cause of action averred in the amended complaint was a departure from that laid in the original complaint. This motion was filed November 9th, 1893. On November 17th, the defendant demurred to the complaint, and on the same day filed three pleas: 1st, general issue; 2d, contributory negligence ; 3d, the statute of limitations of one year to the matters set up in the amended complaint. On November 18th, the plaintiff further amended his complaint, by adding a third count.
[568]*568When a demurrer or pleas are filed to a complaint, and the record shows a subsequent amendment of the complaint, by adding additional counts or otherwise, the party desiring the benefit of the demurrer or pleas which were filed previous to the amendment, against the complaint as amended, should refile them. However many grounds or causes of demurrer there may be, if by a judgment of, the court one ground is held good, the demurrer is sustained. Before the demurrant can be called on to answer further, the record should show some responsive action on the part of his adversary, to the judgment sustaining the demurrer. The judgment entry is as follows : “Thereupon the defendant files amotion and moves the court to strike the amended complaint from the file which motion by the court is overruled. Thereupon the defendant demurs to the complaint as amended, and on consideration by the court, the same is overruled and disallowed as to the. first and second grounds, and sustained as to the third ground ; and issue being joined, thereupon came a jury of good and lawful men,” &c. We presume from the judgment upon the demui’rer, that tlie court regarded the demurxnr and pleas refiled after the amendment was made by adding the third count. It states that the third ground of demurrer was sustained. The defect against which this ground of demurrer was directed, should have been reached by a motion to strike it out of the complaint. We are of opinion that the court intended by its ruling, to declare, that the matter stated ixi the complaint, to which objection was raised by the third gx-ound, could not be considered as a basis for damages, and no more, and considered it stricken out by sustaining the demurrer to it, as the case proceeded upon issue joined without further amendment.
The original complaint averred, that plaintiff was employed as a brakeman, and while in the discharge of his duty was injured, and that the injury was caused by the negligence of the defendant’s agents, servants or employes, who were fellow servants upon said train in failing to apply the brakes upon the cars and check the motion of said train to a speed of safety, &c. The original complaint was filed in time to prevent a bar by the statute of limitations. The complaint as first amended avers the injury and the same facts as to the employment of plain[569]*569tiff, and avers that the injury arose from the negligence of the engineer who had charge of the engine, in permitting the train to attain a great rate of speed, &c. More than a year had transpired from the time the cause of action arose, before the amendment was made. The motion to strike was based upon an alleged departure. Conceding that the original complaint was defective in the matter pointed out by the demurrer, and the plaintiff, without waiting for the judgment of the court on the demurrer, amended his complaint, so as to meet the defect against which the demurrer was directed, the material questions in this condition of the pleading are, whether the amended complaint was such a-departure, as that the motion to strike it from the file should have been granted; and, second, whether the amended complaint introduced a new right or matter, not within the lis pendens of the original complaint, as that the statute of limitations of one year could be pleaded in bar to the .amended complaint. The original complaint does not show any liability of the defendant either at common law or under the Employer’s Liability Act, section 2590 of the Code. It averred that the injury arose "on account of the negligence of the agents, servants or employés, who were fellow servants,” but fails to follow this averment with the necessary allegation, to show the liability of the defendant for such negligence under section 2590 of the Code, supra. At common law the defendant was not liable for injuries resulting from the negligence of fellow servants as averred in the complaint.—Smoot v. M. & M. Railway Co., 67 Ala. 13; C. & W. Railway Co. v. Bradford, 86 Ala. 579; Ga. Pacific Railway Co. v. Davis, 92 Ala. 313; A. G. S. R. R. Co. v. Carroll, 97 Ala. 126.
To recover under the statute, the averments must conform to its provisions. The amended complaint averred that the injury was caused by the negligence of the engineer who had charge or control of the engine, and by this amendment the action was brought within the provision of subdivision 5 of section 2590 of the Code. In both the original and amended complaint, it is averred that owing to the down grade and curves of the track at the place, the great speed of the train was the proximate cause that caused the plaintiff to fall. In the original complaint it is averred that this speed was attained on account of the negligence of the agents, servants, and [570]*570employés of the defendant. In the amended complaint it is averred, that the speed which caused him to fall by which he was injured, was attained on account of the negligence of the engineer who had charge or control of the engine. The speed of the train complained of, and which it is averred in both counts caused the injury occurred at the same time and place. We do not think the court erred in refusing to strike the amended complaint from the file, nor do we see there was any new right or matter introduced, which would prevent the amendment from relating back to the date of the filing of the complaint. The speed of the train, and the condition of the road, the time and place, and the injury were within the Us pendens of the original complaint. If the trial had proceeded upon issue joined upon the original complaint, and the evidence had shown, that the speed at which the train ran, on account of the circumstances, was culpable negligence and caused the injury, and that in fact, it was caused by the negligence of the engineer in charge and control'of the engine, under our system the plaintiff had the right to amend his complaint to meet this phase of the evidence. The case is distinguishable from Mohr v. Lemle, 69 Ala. 180 and authorities cited, and from A. & A. R. R. Co. v. Ledbetter & Farmer, 92 Ala. 326.
There was no error in receiving testimony as to the rate of speed of the train at Holmes’ Gap, which was not more than a mile and a half from the place of the injury. The jury could very properly consider the rate of speed here, in determining the rate of speed at a place so near.
The court erred in admitting the testimony of the witness Scott of the probable duration of life of plaintiff. We do not see the relevancy of this evidence in any aspect of the case.
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COLEMAN, J.
The appellee, Woods, instituted the present action in case to recover damages for personal injuries alleged to have been sustained on the 29th of March, 1892. The complaint was filed March 25th, 1893, and as originally framed contained but one count. To this defendant filed a demurrer on May 23d, 1893. On June 22d, 1893, the plaintiff amended his complaint. The defendant filed a motion t.o strike the complaint as amended from the file, on the ground that the cause of action averred in the amended complaint was a departure from that laid in the original complaint. This motion was filed November 9th, 1893. On November 17th, the defendant demurred to the complaint, and on the same day filed three pleas: 1st, general issue; 2d, contributory negligence ; 3d, the statute of limitations of one year to the matters set up in the amended complaint. On November 18th, the plaintiff further amended his complaint, by adding a third count.
[568]*568When a demurrer or pleas are filed to a complaint, and the record shows a subsequent amendment of the complaint, by adding additional counts or otherwise, the party desiring the benefit of the demurrer or pleas which were filed previous to the amendment, against the complaint as amended, should refile them. However many grounds or causes of demurrer there may be, if by a judgment of, the court one ground is held good, the demurrer is sustained. Before the demurrant can be called on to answer further, the record should show some responsive action on the part of his adversary, to the judgment sustaining the demurrer. The judgment entry is as follows : “Thereupon the defendant files amotion and moves the court to strike the amended complaint from the file which motion by the court is overruled. Thereupon the defendant demurs to the complaint as amended, and on consideration by the court, the same is overruled and disallowed as to the. first and second grounds, and sustained as to the third ground ; and issue being joined, thereupon came a jury of good and lawful men,” &c. We presume from the judgment upon the demui’rer, that tlie court regarded the demurxnr and pleas refiled after the amendment was made by adding the third count. It states that the third ground of demurrer was sustained. The defect against which this ground of demurrer was directed, should have been reached by a motion to strike it out of the complaint. We are of opinion that the court intended by its ruling, to declare, that the matter stated ixi the complaint, to which objection was raised by the third gx-ound, could not be considered as a basis for damages, and no more, and considered it stricken out by sustaining the demurrer to it, as the case proceeded upon issue joined without further amendment.
The original complaint averred, that plaintiff was employed as a brakeman, and while in the discharge of his duty was injured, and that the injury was caused by the negligence of the defendant’s agents, servants or employes, who were fellow servants upon said train in failing to apply the brakes upon the cars and check the motion of said train to a speed of safety, &c. The original complaint was filed in time to prevent a bar by the statute of limitations. The complaint as first amended avers the injury and the same facts as to the employment of plain[569]*569tiff, and avers that the injury arose from the negligence of the engineer who had charge of the engine, in permitting the train to attain a great rate of speed, &c. More than a year had transpired from the time the cause of action arose, before the amendment was made. The motion to strike was based upon an alleged departure. Conceding that the original complaint was defective in the matter pointed out by the demurrer, and the plaintiff, without waiting for the judgment of the court on the demurrer, amended his complaint, so as to meet the defect against which the demurrer was directed, the material questions in this condition of the pleading are, whether the amended complaint was such a-departure, as that the motion to strike it from the file should have been granted; and, second, whether the amended complaint introduced a new right or matter, not within the lis pendens of the original complaint, as that the statute of limitations of one year could be pleaded in bar to the .amended complaint. The original complaint does not show any liability of the defendant either at common law or under the Employer’s Liability Act, section 2590 of the Code. It averred that the injury arose "on account of the negligence of the agents, servants or employés, who were fellow servants,” but fails to follow this averment with the necessary allegation, to show the liability of the defendant for such negligence under section 2590 of the Code, supra. At common law the defendant was not liable for injuries resulting from the negligence of fellow servants as averred in the complaint.—Smoot v. M. & M. Railway Co., 67 Ala. 13; C. & W. Railway Co. v. Bradford, 86 Ala. 579; Ga. Pacific Railway Co. v. Davis, 92 Ala. 313; A. G. S. R. R. Co. v. Carroll, 97 Ala. 126.
To recover under the statute, the averments must conform to its provisions. The amended complaint averred that the injury was caused by the negligence of the engineer who had charge or control of the engine, and by this amendment the action was brought within the provision of subdivision 5 of section 2590 of the Code. In both the original and amended complaint, it is averred that owing to the down grade and curves of the track at the place, the great speed of the train was the proximate cause that caused the plaintiff to fall. In the original complaint it is averred that this speed was attained on account of the negligence of the agents, servants, and [570]*570employés of the defendant. In the amended complaint it is averred, that the speed which caused him to fall by which he was injured, was attained on account of the negligence of the engineer who had charge or control of the engine. The speed of the train complained of, and which it is averred in both counts caused the injury occurred at the same time and place. We do not think the court erred in refusing to strike the amended complaint from the file, nor do we see there was any new right or matter introduced, which would prevent the amendment from relating back to the date of the filing of the complaint. The speed of the train, and the condition of the road, the time and place, and the injury were within the Us pendens of the original complaint. If the trial had proceeded upon issue joined upon the original complaint, and the evidence had shown, that the speed at which the train ran, on account of the circumstances, was culpable negligence and caused the injury, and that in fact, it was caused by the negligence of the engineer in charge and control'of the engine, under our system the plaintiff had the right to amend his complaint to meet this phase of the evidence. The case is distinguishable from Mohr v. Lemle, 69 Ala. 180 and authorities cited, and from A. & A. R. R. Co. v. Ledbetter & Farmer, 92 Ala. 326.
There was no error in receiving testimony as to the rate of speed of the train at Holmes’ Gap, which was not more than a mile and a half from the place of the injury. The jury could very properly consider the rate of speed here, in determining the rate of speed at a place so near.
The court erred in admitting the testimony of the witness Scott of the probable duration of life of plaintiff. We do not see the relevancy of this evidence in any aspect of the case.
The first charge given for plaintiff was confused and contradictory. If the fall of the plaintiff was caused by the negligence of the engineer, as predicated in one part of the charge, it can not be said that it was accidental, as stated in another part.
We find no error in the second instruction given for the plaintiff. The charge was based upon the third count, and this count, we must presume, was tried upon the general issue.
[571]*571The third charge given for plaintiff assumes as a fact proven, that there was a jerk or lurch of the train. The testimony was in conflict on this point. It should have been left with the jury to say which was true. The assumption by the court was an invasion of the province of the jury, and in giving charge three the court erred.
It would not have been proper for the court to have instructed the jury under the evidence, as matter of law, that twenty miles, or forty miles, or forty-five miles, per hour was not negligence. It was a question of fact properly left to the jury in view of all the evidence as to the down grade and reverse curves to determine whether the rate of speed at the time and place was negligence. The court did not err in refusing charges which asserted a contrary rule.
If the duty of a brakeman requires him at any time, to put on the brakes and if it is necessary to traverse a car with coal in order to reach the brake, from a point where the brakeman properly is, we can not say as matter of law he assumes the risk of a jerk or lurch of tho train caused by the negligence of the engineer, if .the jury so find, while walking across the car. If, however, the conductor or engineer directed the brakeman to remain at the first and second brakes, as some of the evidence tends to show, and if of his own accord he left and attempted to reach a third brake, we would say under these circumstances he assumed the risk, of the venture, and if the injury was in consequence of such disobedience of instructions, he would be guilty of contributory negligence. Charges six and seven for these reasons were calculated to mislead, and therefore properly refused.
For the errors pointed out the case must be reversed.
Reversed and remanded.