McCLELLAN, J.
This appeal is prosecuted by the plaintiff (appellant) to review, alone, the action of the trial court in granting the motion for new trial. It contained 94 grounds; but only a part of the grounds assigned are pressed in brief for appellee as justifying the action of the court in granting the motion for new trial. Louis McWilliams was a locomotive engineer, in defendant’s (appellee’s) service, on one of the “hot metal runs” between furnaces at Bessemer and the steel mill at Ensley; and on the night of October 3, 1918, while making the run indicated, moving one ladle of hot metal, a collision occurred, within the “yard limits” of Ensley, between his engine and a “cut” of cars left on the main track by another train crew of the defendant (appellee) that was engaged in switching in or about the Ensley yards.
[1-3]
The submission to the jury was confined to the averments of counts 1, 2, 3, and 4, and the issues consequent upon pleading to the averments of those counts. Counts 1, 2, and 3 were designed to state a cause of action under our Employers’ Liability Act (Code, § 3910), and count 4 attributed intestate’s death to this:
“The defendant negligently failed to furnish the plaintiff’s intestate with reasonably safe and suitable tools and appliances with which to perform his said work, to wit, the headlight on said engine was not reasonably safe and suitable for said work.”
This count was intended to declare upon a breach of a common-law duty, and is to be referred to our Homicide Act (Code, § 2486), where the damages recoverable are punitive ‘only. Count 1 attributes intestate’s injury and death to a defect in the condition of the ways, etc., within the purview of subdivision 1 of Code, (section 3910); count 2, to a breach Of duty by a superintendent, under subdivision 2 of that statute (section 3910); and count 3, to a breach of duty by a person, in defendant’s service, who had charge or control of a signal, etc., under subdivision 5 of the statute (section 3910). The report of the appeal will reproduce the substance of counts 1, 2, and 3, and the demurrers to them as well as to count 4. ■ If any of the grounds of these demurrers were not general only, and hence due to be overruled under Code, § 5340, they were without merit, and were properly overruled. The only ground urged in brief as against count 4 was ground 7; and it was general. No demurrers addressed to special replications 2, 3, and 4 appearing in the record, the action of the court jn overrulingi defendant’s demurrers to these special replications cannot, under the familiar rule, be reviewed. This state of the record forbids an authoritative pronouncement upon important questions to which counsel have devoted enlightening argument. The judgment entry recites that the defendant’s demurrer to special replication 5 was sustained, a ruling in favor of defendant that was not, of course, a ground of the mbtion. These considerations dispose of all the grounds of the motion for new trial that are referable to action taken by the trial court in passing on the sufficiency of the pleading.
In addition to a general traverse of the averments of counts 1, 2, 3, and 4, the defendant interposed pleas 2 to 11, inclusive, to each count of the complaint. All of these pleas proceed upon the theory that intestate was guilty of contributory negligence, barring a recovery if sustained in the proof. They respectively averred, either intestate’s reckless operation of the engine under the circumstances described, or his violation of rules of the employer, or warning given him by a superior with respect to' the operation of his engine in the “yard limits” where the collision occurred, or the binding quality’ of rules because intestate’s employment by defendant was predicated of their acceptance and his written agreement to obey them in his service. The plaintiff, besides joining issue on each of the pleas, interposed special replications 2, 3, and 4 (omitting reference to special replication 5 for the reason already stated). Special replication 2 set up, in effect, a conflict between the “schedule,” constituting, it is indicated, special instructions — -he was required to make on the run in question and the rules asserted in some of the pleas — And averred the impossibility “under, usual and ordinary conditions” of making the “schedule” and at the same time observing the rules pleaded. ’ The certainty that this replication should be free from criticism, if not more — because of its omission to. aver such circumstances as would brin'g the occasion of intestate's injury and death within the “usual and ordinary conditions” alluded to in the replications, and because of the allegation of the pleader’s conclusion that the “schedule” and the rules pleaded could not have been both observed on this occasion — might be attained by the averment of facts conducing to the conclusions assumed or alleged. The absence of demurrers before mentioned forbids any authoritative decision of these matters at this time. Our purpose is simply to draw attention to the structure and substance of this replication. Special replications 3 and 4 proceeded on the theory of a waiver of the binding force of the rules set up in the pleas. Their sufficiency cannot, as stated, be considered.
[4, 5]
The plaintiff: was permitted to adduce much testimony descriptive of the ages and conditions of intestate’s minor brothers. The only objections were that this testimony was immaterial, irrelevant, or incompetent. According to the joint effects of Code, §§ 2486, 3912, 3763, and 3754, the possible beneficiaries of the damages recoverable were, in the contingencies that the intestate left no descendants (and this intestate did not) and only one parent, the surviving dependent brothers. It developed in the testimony of intestate’s mother, after the mentioned testimony was received, that intestate’s father was living, though divorced from intestate’s mother. This . testimony was hence admissible in the contingency indicated. Neither the objections nor the grounds of motion to exclude pointed the criticism that the ages and conditions of intestate’s minor brothers was matter without the issues, unless it was shown that intestate’s father was not living. The court did not, therefore, err in overruling the general objections stated: and hence the pertinent doctrine of Watson v. Adams, 187 Ala. 490, 65 South. 528, Ann. Cas. 1916E, 565, where wholly illegal evidence was admitted, has no application. After it was shown that intestate’s-father was living, the cdurt said:
“I am inclined to think all of this testimony in regard to his brothers and their conditions is all irrelevant, and I will exclude that.”
Under these circumstances, very different from those considered in Watson v. Adams, supra, if the defendant was not satisfied with the declaration of the court, the defendant should have moved the court to further affirmative action in the premises, a course that was not promptly taken after the court had announced the exclusion of the testimony relating to the ages and conditions of intestate’s minor brothers. The granting of the motion for new trial cannot be attributed to grounds based upon this matter. The motion to exclude, made after the close of the evidence, cannot afford the basis for the imputation of error; the court having theretofore announced the exclusion of this testimony.
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McCLELLAN, J.
This appeal is prosecuted by the plaintiff (appellant) to review, alone, the action of the trial court in granting the motion for new trial. It contained 94 grounds; but only a part of the grounds assigned are pressed in brief for appellee as justifying the action of the court in granting the motion for new trial. Louis McWilliams was a locomotive engineer, in defendant’s (appellee’s) service, on one of the “hot metal runs” between furnaces at Bessemer and the steel mill at Ensley; and on the night of October 3, 1918, while making the run indicated, moving one ladle of hot metal, a collision occurred, within the “yard limits” of Ensley, between his engine and a “cut” of cars left on the main track by another train crew of the defendant (appellee) that was engaged in switching in or about the Ensley yards.
[1-3]
The submission to the jury was confined to the averments of counts 1, 2, 3, and 4, and the issues consequent upon pleading to the averments of those counts. Counts 1, 2, and 3 were designed to state a cause of action under our Employers’ Liability Act (Code, § 3910), and count 4 attributed intestate’s death to this:
“The defendant negligently failed to furnish the plaintiff’s intestate with reasonably safe and suitable tools and appliances with which to perform his said work, to wit, the headlight on said engine was not reasonably safe and suitable for said work.”
This count was intended to declare upon a breach of a common-law duty, and is to be referred to our Homicide Act (Code, § 2486), where the damages recoverable are punitive ‘only. Count 1 attributes intestate’s injury and death to a defect in the condition of the ways, etc., within the purview of subdivision 1 of Code, (section 3910); count 2, to a breach Of duty by a superintendent, under subdivision 2 of that statute (section 3910); and count 3, to a breach of duty by a person, in defendant’s service, who had charge or control of a signal, etc., under subdivision 5 of the statute (section 3910). The report of the appeal will reproduce the substance of counts 1, 2, and 3, and the demurrers to them as well as to count 4. ■ If any of the grounds of these demurrers were not general only, and hence due to be overruled under Code, § 5340, they were without merit, and were properly overruled. The only ground urged in brief as against count 4 was ground 7; and it was general. No demurrers addressed to special replications 2, 3, and 4 appearing in the record, the action of the court jn overrulingi defendant’s demurrers to these special replications cannot, under the familiar rule, be reviewed. This state of the record forbids an authoritative pronouncement upon important questions to which counsel have devoted enlightening argument. The judgment entry recites that the defendant’s demurrer to special replication 5 was sustained, a ruling in favor of defendant that was not, of course, a ground of the mbtion. These considerations dispose of all the grounds of the motion for new trial that are referable to action taken by the trial court in passing on the sufficiency of the pleading.
In addition to a general traverse of the averments of counts 1, 2, 3, and 4, the defendant interposed pleas 2 to 11, inclusive, to each count of the complaint. All of these pleas proceed upon the theory that intestate was guilty of contributory negligence, barring a recovery if sustained in the proof. They respectively averred, either intestate’s reckless operation of the engine under the circumstances described, or his violation of rules of the employer, or warning given him by a superior with respect to' the operation of his engine in the “yard limits” where the collision occurred, or the binding quality’ of rules because intestate’s employment by defendant was predicated of their acceptance and his written agreement to obey them in his service. The plaintiff, besides joining issue on each of the pleas, interposed special replications 2, 3, and 4 (omitting reference to special replication 5 for the reason already stated). Special replication 2 set up, in effect, a conflict between the “schedule,” constituting, it is indicated, special instructions — -he was required to make on the run in question and the rules asserted in some of the pleas — And averred the impossibility “under, usual and ordinary conditions” of making the “schedule” and at the same time observing the rules pleaded. ’ The certainty that this replication should be free from criticism, if not more — because of its omission to. aver such circumstances as would brin'g the occasion of intestate's injury and death within the “usual and ordinary conditions” alluded to in the replications, and because of the allegation of the pleader’s conclusion that the “schedule” and the rules pleaded could not have been both observed on this occasion — might be attained by the averment of facts conducing to the conclusions assumed or alleged. The absence of demurrers before mentioned forbids any authoritative decision of these matters at this time. Our purpose is simply to draw attention to the structure and substance of this replication. Special replications 3 and 4 proceeded on the theory of a waiver of the binding force of the rules set up in the pleas. Their sufficiency cannot, as stated, be considered.
[4, 5]
The plaintiff: was permitted to adduce much testimony descriptive of the ages and conditions of intestate’s minor brothers. The only objections were that this testimony was immaterial, irrelevant, or incompetent. According to the joint effects of Code, §§ 2486, 3912, 3763, and 3754, the possible beneficiaries of the damages recoverable were, in the contingencies that the intestate left no descendants (and this intestate did not) and only one parent, the surviving dependent brothers. It developed in the testimony of intestate’s mother, after the mentioned testimony was received, that intestate’s father was living, though divorced from intestate’s mother. This . testimony was hence admissible in the contingency indicated. Neither the objections nor the grounds of motion to exclude pointed the criticism that the ages and conditions of intestate’s minor brothers was matter without the issues, unless it was shown that intestate’s father was not living. The court did not, therefore, err in overruling the general objections stated: and hence the pertinent doctrine of Watson v. Adams, 187 Ala. 490, 65 South. 528, Ann. Cas. 1916E, 565, where wholly illegal evidence was admitted, has no application. After it was shown that intestate’s-father was living, the cdurt said:
“I am inclined to think all of this testimony in regard to his brothers and their conditions is all irrelevant, and I will exclude that.”
Under these circumstances, very different from those considered in Watson v. Adams, supra, if the defendant was not satisfied with the declaration of the court, the defendant should have moved the court to further affirmative action in the premises, a course that was not promptly taken after the court had announced the exclusion of the testimony relating to the ages and conditions of intestate’s minor brothers. The granting of the motion for new trial cannot be attributed to grounds based upon this matter. The motion to exclude, made after the close of the evidence, cannot afford the basis for the imputation of error; the court having theretofore announced the exclusion of this testimony.
A consideration of the whole evidence will not admit of the ascription of the action of the court in granting the new trial to those grounds of the -motion that proceed on the theory that any one of the pleas were conclusively proven; and a like conclusion is invited by a consideration of the evidence referable to the averments of the special replications.
[6]
Since the record does not disclose the statement of any ground of objection to -the question designed to elicit testimony deserip^ tive of the condition of the engine, in an hour after the collision, with respect to the “set” of the brake valve, the levers and the sand valve, error cannot be imputed to the court’s action on that matter. In order to render such testimony admissible against definite objection, there should be some evidence directed to excluding the possibility that the impact did not place these appliances as the witness stated he found them, as well as to negative their “setting" or the movement of them by some one after the collision.
[7, 8]
The testimony of the witnesses Mathis and Hill, respecting the customary speed of trains of the character in question, over the line at the point where this collision occurred, prior to the time intestate was killed, was admissible under the issues tendered by replication 3. According to the doctrine of L. & N. R. R. Co. v. Mothershed, 110 Ala. 143, particularly 159, 160, 20 South. 67, mere
habitual, customary violation of a rule which the employé has agreed in writing to obey will not suffice to show its abandonment or abrogation. In order to avoid the binding quality of a rule so accepted, its violation must have been of such persistent, long-continued character, known to officers or superior employés authorized to bind the employer by acquiescence in its abrogation (A.
G.
S. R. R. Co. v. Roach, 110 Ala. 266, 272, 20 South. 132), as to evince an assent to the rule’s nonobservance. The fact, however, that such is the law’s exaction to show the abrogation of a rule the employé has agreed, in writing, to obey, does not militate against the propriety of admitting testimony of the character given, in this connection, by the witnesses Mathis and Hill.
[9]
The amount of the verdict was $32,500. If it is assumed, for the occasion only, that the sole grounds (of the
94
assigned in the motion for new trial) to which the action of the court could be attributed for justification are those (92, 93) bringing into question the exeessiveness vel non of the verdict, the pertinent doctrine of Cox v. B. R., L. &
P.
Co., 163 Ala. 170, 50 South. 975, applying the familiar rule of Cobb v. Malone, 92 Ala. 630, 9 South. 738, forbids a conclusion, on the whole evidence, that the action of the trial court in granting the motion for new trial was erroneous. There is no evidence that would warrant a finding that McNabb or his switching crew or any other servant of the defendant left the “cut” of cars, in the nighttime, without warning signals, on the main .line, in the “yard limits,” with an intent to cause injury, or wantonly, with a consciousness that by so doing injury or damage would probably result or be inflicted. Even when referred to the character of damages (punitive only) claimed under the fourth count (Code, § 2486), it cannot be affirmed that the court erred in the premises.
The judgment granting the motion is therefore affirmed.
Affirmed.
ANDERSON, C. X, and SOMERVILLE and THOMAS, JJ., concur.