CLOPTON, J.
— The first- six assignments of error go to overruling the demurrers to the first, nineteenth, twenty-first, twenty-third, twenty-sixth and twenty-seventh counts of the complaint; the twenty-fourth count having been struck out by amendment, and the demurrers to the others sustained. In each count, the averment of negligence is general. In actions based on misfeasance or nonfeasance, the rule, as settled by our decisions, is, that when the complaint avers the facts from, which the duty arises, a general averment of negligence is sufficient under our system of pleading; the pleader' is not required to specify the particular acts or omissions, from which the conclusion of negligence is deducible. — Leach v. Bush, 57 Ala. 145; Ensley Railway Co. v. Chewning, 93 Ala. 24; 9 So. Rep. 458.
The first count of the complaint is not framed under any clause of the statute. It avers that plaintiff was on the track at the instance and request, of defendant — that is, by invitation. From this fact springs the duty to exercise reasonable care and precaution to avoid injuring him. The facts being stated from which the duty legally arises, a general averment, that the defendant negligently ran over and injured the plaintiff with one of its engines, is sufficient. The count sets forth a" substantial cause of action.
The nineteenth and twenty-first counts are framed under sub-division 3 of section 259Ó of the Code, which gives a right of action to an injured employé, “when such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, to whose orders or directions the servant or employé, at the time of the injury, was bound to conform, and did conform, if such injuries resulted from having so conformed.” On the princijDles stated above, it- is not necessary in a complaint founded on this clause of the section, to aver in what particular or respect the orders or directions were negligent. It may .be, that good pleading requires the name of the person, to whose orders the employé [215]*215is bound to conform, to be stated, so as to give the defendant notice thereof, and present as an issuable fact whether such person was- in the service or employment of defendant, or whether plaintiff was bound to conform to his orders. This, however, not being assigned as ground of demurrer, we do not decide, and allude to it merely to prevent any inference of approval of a complaint omitting the name.
On the same principle, in a complaint framed under subdivision 5 of the section — “when such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has charge or control of any signal, points, locomotive, engine, switch, car or train upon a railway, or any part of the track of a railway” — it is not essential to aver that the engineer knew, or might have known by the exercise of reasonable diligence, that plaintiff was between the engine and car, or any other particular acts or omissions constituting the negligence complained of Neither need the complaint negative the fact that plaintiff’ knew, or by reasonable diligence might have known, the defect or negligence charged; contributory negligence is defensive matter, which must be pleaded and proved by defendant. L. & N. R. R. Co. v. Hawkins, 92 Ala. 241; 9 So. Rep. 271. The demurrers to the nineteenth, twenty-first, and twenty-third counts, were properly overruled.
The third ground of demurrer to the twenty-sixth count is, that it fails to allege that defendant, or any person superior to plaintiff, engaged in the employment of defendant, knew of the condition of the engine, or might have known of the same by reasonable or ordinary diligence. This count is framed under sub-division 1 of the section, which gives a right of action, “when the injury is caused by reason of any defect in the condition of the ways, works, machinery or plant connected with, or used in the business of the master or employer.” The statute, however, further provides : “Nor is the master or employer liable under sub-division one, unless the defect arose from, or had not been discovered or remedied owing to the negligence, of the master or employer, or of some person in the service of the master or employer and intrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition.” In C. & W. Railway Co. v. Bradford, 86 Ala. 574, this provision was held not to relate to defensive matter, but to the negligence of the defendant, and that facts would probably have to be averred, which would show that the defect was within the statutory limitations. In this, as in the other enumerated classes of cases arising under the statute, negligence on the part of the em[216]*216ployer is the essential basis of liability to. answer in damages to an injured employé — without negligence,-there can be no recovery. A complaint drawn under this clause, which does not allege in the words of the statute, or in substance, that the defect arose from, or was not discovered and remedied owing to the negligence of defendant, or of some person intrusted with the duty of seeing that the ways, works, machinery or plant were in proper condition, fails to set forth a good and substantial cause of action. As to the particularity with which the facts should be averred, it is said in L. & N. R. R. Co. v. Hawkins, supra, “There is no reason, however, for requiring a greater degree of particularity in the averment of negligence under this statute, than is required with respect to any other negligence counted on for a recovery of damages ; and the facts to be alleged in either class of cases are little, if any more, than the mere conclusions of the pleader, leaving the factors which enter into, and support 'the conclusions, to be adduced in evidence.” An allegation, pursuing the words of the statute, or substantially the same, is sufficient; but this much is requisite. The averment in the count, that “defendant negligently used in its business a steam-engine or locomotive which was out of order, so that it could not be stopped promptly,” can not be regarded as the equivalent of the statutory language. The engine may have been negligently used in the business, and yet the defect complained of not have arisen from, or been discovered and remedied owing to the negligence of defendant, or of some person intrusted with the duty of seeing that the works and machinery were in proper condition. The adverb negligently, as employed in the count, qualifies the manner in which the engine was used, and,fairly construed, does not relate to the origin of the defect, or to the failure to discover and remedy it; and even when taken in connection with the subsequent averment, that plaintiff was injured on account of “the neglectively defective condition of the engine,” is not the equivalent of an averment that the defect arose from, or was not discovered and remedied, owing to the negligence of defendant, or of any person in its employment — is insufficient to bring the case within the statutory limitations. — Seaboard Manuf. Co. v. Woodson, ante, 143. The demurrer to the twenty-sixth count should have been sustained. The twenty-seventh count, which is framed under the same clause of the statute, is not obnoxious to any of the objections made in the assignments of grounds of demurrer.
The next fourteen assignments of error go the rulings on evidence. If the evidence-objected to by defendant is admissible under any count of the complaint, there is no error in [217]*217refusing its exclusion.
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CLOPTON, J.
— The first- six assignments of error go to overruling the demurrers to the first, nineteenth, twenty-first, twenty-third, twenty-sixth and twenty-seventh counts of the complaint; the twenty-fourth count having been struck out by amendment, and the demurrers to the others sustained. In each count, the averment of negligence is general. In actions based on misfeasance or nonfeasance, the rule, as settled by our decisions, is, that when the complaint avers the facts from, which the duty arises, a general averment of negligence is sufficient under our system of pleading; the pleader' is not required to specify the particular acts or omissions, from which the conclusion of negligence is deducible. — Leach v. Bush, 57 Ala. 145; Ensley Railway Co. v. Chewning, 93 Ala. 24; 9 So. Rep. 458.
The first count of the complaint is not framed under any clause of the statute. It avers that plaintiff was on the track at the instance and request, of defendant — that is, by invitation. From this fact springs the duty to exercise reasonable care and precaution to avoid injuring him. The facts being stated from which the duty legally arises, a general averment, that the defendant negligently ran over and injured the plaintiff with one of its engines, is sufficient. The count sets forth a" substantial cause of action.
The nineteenth and twenty-first counts are framed under sub-division 3 of section 259Ó of the Code, which gives a right of action to an injured employé, “when such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, to whose orders or directions the servant or employé, at the time of the injury, was bound to conform, and did conform, if such injuries resulted from having so conformed.” On the princijDles stated above, it- is not necessary in a complaint founded on this clause of the section, to aver in what particular or respect the orders or directions were negligent. It may .be, that good pleading requires the name of the person, to whose orders the employé [215]*215is bound to conform, to be stated, so as to give the defendant notice thereof, and present as an issuable fact whether such person was- in the service or employment of defendant, or whether plaintiff was bound to conform to his orders. This, however, not being assigned as ground of demurrer, we do not decide, and allude to it merely to prevent any inference of approval of a complaint omitting the name.
On the same principle, in a complaint framed under subdivision 5 of the section — “when such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has charge or control of any signal, points, locomotive, engine, switch, car or train upon a railway, or any part of the track of a railway” — it is not essential to aver that the engineer knew, or might have known by the exercise of reasonable diligence, that plaintiff was between the engine and car, or any other particular acts or omissions constituting the negligence complained of Neither need the complaint negative the fact that plaintiff’ knew, or by reasonable diligence might have known, the defect or negligence charged; contributory negligence is defensive matter, which must be pleaded and proved by defendant. L. & N. R. R. Co. v. Hawkins, 92 Ala. 241; 9 So. Rep. 271. The demurrers to the nineteenth, twenty-first, and twenty-third counts, were properly overruled.
The third ground of demurrer to the twenty-sixth count is, that it fails to allege that defendant, or any person superior to plaintiff, engaged in the employment of defendant, knew of the condition of the engine, or might have known of the same by reasonable or ordinary diligence. This count is framed under sub-division 1 of the section, which gives a right of action, “when the injury is caused by reason of any defect in the condition of the ways, works, machinery or plant connected with, or used in the business of the master or employer.” The statute, however, further provides : “Nor is the master or employer liable under sub-division one, unless the defect arose from, or had not been discovered or remedied owing to the negligence, of the master or employer, or of some person in the service of the master or employer and intrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition.” In C. & W. Railway Co. v. Bradford, 86 Ala. 574, this provision was held not to relate to defensive matter, but to the negligence of the defendant, and that facts would probably have to be averred, which would show that the defect was within the statutory limitations. In this, as in the other enumerated classes of cases arising under the statute, negligence on the part of the em[216]*216ployer is the essential basis of liability to. answer in damages to an injured employé — without negligence,-there can be no recovery. A complaint drawn under this clause, which does not allege in the words of the statute, or in substance, that the defect arose from, or was not discovered and remedied owing to the negligence of defendant, or of some person intrusted with the duty of seeing that the ways, works, machinery or plant were in proper condition, fails to set forth a good and substantial cause of action. As to the particularity with which the facts should be averred, it is said in L. & N. R. R. Co. v. Hawkins, supra, “There is no reason, however, for requiring a greater degree of particularity in the averment of negligence under this statute, than is required with respect to any other negligence counted on for a recovery of damages ; and the facts to be alleged in either class of cases are little, if any more, than the mere conclusions of the pleader, leaving the factors which enter into, and support 'the conclusions, to be adduced in evidence.” An allegation, pursuing the words of the statute, or substantially the same, is sufficient; but this much is requisite. The averment in the count, that “defendant negligently used in its business a steam-engine or locomotive which was out of order, so that it could not be stopped promptly,” can not be regarded as the equivalent of the statutory language. The engine may have been negligently used in the business, and yet the defect complained of not have arisen from, or been discovered and remedied owing to the negligence of defendant, or of some person intrusted with the duty of seeing that the works and machinery were in proper condition. The adverb negligently, as employed in the count, qualifies the manner in which the engine was used, and,fairly construed, does not relate to the origin of the defect, or to the failure to discover and remedy it; and even when taken in connection with the subsequent averment, that plaintiff was injured on account of “the neglectively defective condition of the engine,” is not the equivalent of an averment that the defect arose from, or was not discovered and remedied, owing to the negligence of defendant, or of any person in its employment — is insufficient to bring the case within the statutory limitations. — Seaboard Manuf. Co. v. Woodson, ante, 143. The demurrer to the twenty-sixth count should have been sustained. The twenty-seventh count, which is framed under the same clause of the statute, is not obnoxious to any of the objections made in the assignments of grounds of demurrer.
The next fourteen assignments of error go the rulings on evidence. If the evidence-objected to by defendant is admissible under any count of the complaint, there is no error in [217]*217refusing its exclusion. The twenty-seventh count avers ’that the engine used in the yard at the time of plaintiff’s injury, was not provided with a platform, or other device, on which brakemen could stand to couple and uncouple. The evidence tends to show that defendant ordinarily used in the yard a regular switch-engine "having a step in front and rear, on which brakemen could stand. The switch-engine, being out of; order, was at the shops for repairs, and a road-engine with pilot attached substituted. In front of the road-engine, and attached thereto, a flat car was used until Thursday or Friday evening before plaintiff was injured on Sunday; this flat car had been removed from the yard by the yard-master. There is also evidence that the use of a flat car qbviated the necessity of brakemen standing on the ground when coupling or uncoupling. It was manifestly the duty of defendant to furnish as safe and suitable appliances as was practicable and reasonable under the circumstances for the protection of brakemen. In view of the other evidence, and this duty, testimony that defendant ordinarily used a particular kind of engine in the yard, and customarily used a flat car when a road-engine was substituted therefor, and that a flat car was attached to the road-engine for a time, was admissible.
The eleventh assignment of error, to the effect that plaintiff was allowed to testify that the fireman was handling the engine at the time he was injured, does not seem to be sustained by the record. As we understand his evidence, he did not testify that the fireman was handling the engine, but simply that he stopped it. On the contrary, he testified that Lyon, the engineer, was in charge of the engine. However, if conceded that he did so testify, the evidence was admissible under the twenty-third count, as tending to show negligence on the part of tiie engineer in permitting the fireman to handle the engine at such time and under such circumstances.
The testimony as to the consideration which moved plaintiff to quit the shops and take employment as a brakeman, was properly excluded; it does not throw light on any proper or material inquiry. The witness Davis, who is prima facie shown to be an expert in such matters, was competent to testify to the difference in danger between using a road-engine with and without a flat car, especially when he states the facts on which his opinion is based. But it was not admissible for the plaintiff to testify that the railroad men considered a road-engine dangerous for uncoupling. This is mere hearsay; the experts themselves should have been called. The record discloses exceptions to other portions of the evidence, but they are not assigned for error.
[218]*218The remaining assignments of error, twenty-eight in number, go to charges given, and the refusals of charges asked by defendant. In considering them we shall not regard the order in which they are numbered. The general principles regulating, in all the classes of cases defined by the statute, the rights and-duties of'the employé, and the liability of the employer’, and also the defenses available to him, as declared by our former decisions, may be summarized as follows: Though the statute has no application to the known risks and dangers of the service or employment against which human skill and caution can not provide; when'an employé sustains injury by reason of any defect in the ways, works, machinery or plant, or the injury is caused by the negligence of any of the persons mentioned, and under the circumstances provided by the statute, it abrogates the common-law rule, that the employé impliedly contracts to assume the known and ordinary risks incident to his employment. In neither of the classes of cases, however, does any liability for injuries caused by the known and ordinary risks arise, without negligence on the part of the employer, or of some person intrusted with superintendence, or authority to give orders or directions, or having-charge or control of some signal, point, locomotive, engine, car or train upon the track of the railway, or by reason of the act or omission of some person done or made in obedience to the rules, regulations or by-laws of the employer, or to particular instructions of a person delegated with authority in that behalf. The scope and operation of the statute is, to make the employer answerable in damages for an injury caused by his own negligence, or the negligence of a co-employé of the same or superior grade, in the enumerated classes of cases.In all cases, the" employé is bound to use ordinary care for his own protection. If there are two ways of discharging the service, apparent to the employe, one dangerous and the other safe, or less dangerous, he must select the safe or less dangerous way, and can not recover for an injury sustained, when the danger is imminent, and so obvious that a careful and prudent man would not incur the risk under the same circumstances.- — Highland Ave. & Belt R. R. Co. v. Walters, 8 So. Rep. 357; L. & N. R. R. Co. v. Orr, 91 Ala. 548; 8 So. Rep. 360; Mobile & B. Railway Co. v. Holborn, 84 Ala. 133. There is evidence tending to show that plaintiff could have stood on the ground and uncoupled the car without going between the engine and car. If this be true, and it was apparent to plaintiff, and he nevertheless'went between the engine and car, this was negligence, sufficient to defeat a recovery, if it contributed to his injury, notwithstanding there [219]*219may have been negligence on the part of defendant, unless liis injury' was caused by reckless, wanton, or willful negligence; under such circumstances it can not be said that plaintiff used ordinary caution to prevent injury.
To entitle plaintiff to recover by virtue of the statute, he must both aver and prove a case coming within one of the enumerated classes of cases. Under the nineteenth and twenty-first counts,it is incumbent on plaintiff to show (1) that the person who gave the orders or directions was in the service or employment of defendant; (2) that, he was bound to conform to the orders of such person ; (3) that he did conform to such orders, and that his injuries resulted from having so conformed ; and (4) that the person was negligent in giving the orders or directions. The clause under which these counts are framed evidently refers to special orders or directions, in respect to the particular service in which the employé is engaged at the time of the injury, as distinguished from a general order or direction in reference to the discharge of his-general service, growing out of the nature and scope of his employment. But, in case of a special order to uncouple, there need be no express order '■'■to go between the engine and ca.vP Such direction will be implied from a special order to uncouple at a time ani under circumstances rendering going between the engine and car necessary to conform to the order. There being no evidence that- the yard-master gave plaintiff any order or direction to uncouple the car from the engine at the time of his injury, he has failed to establish one of the essential statutory propositions, and is not entitled to recover under the twenty-first count. But. charge 2, requested by defendant, proceeds on the theory, that an express order, at the time of the .injury, to go between the engine and car to uncouple, is requisite, and also that defendant may set up in such case the defense that plaintiff assumed the ordinary risks incident to his employment, though his injury may have been .caused by the negligence of .the yard-master. For this reason the charge was properly refused. The same observations apply to charges 7 and 10. Also, if the evidence fails to show that plaintiff was bound to conform to the orders of the switchman, he is not entitled to recover under the nineteenth count. Charge 1 should have been given, if not objectionable in form, which we shall notice hereafter.
The twenty-sixth count alleges that the engine was so out of order that it could not be stopped promptly. The pleader having specified the particular defect, it becomes matter of description, which it is incumbent on plaintiff to prove with equal particularity, as also that he was injured by reason of [220]*220such defect. If, therefore, the evidence fails to satisfy the jury that the particular defect existed, or that plaintiff was injured by reason thereof, he is not entitled to recover under that count. — L. & N. R. R. Co. v. Coulton, 86 Ala. 129. This is the legal proposition asserted in charge 4.
While charges 12, 13, 15 and 16 may assert correctly general legal propositions, they are defective in assuming as matter of law, that plaintiff’s want of care and caution contributed to his injury. Plaintiff may have been guilty of negligence as hypothesized, and yet such negligence not have contributed to his injury. Whether it did or not so contribute was a question of'fact for the determination of the jury.
Charges 5 and 6 are founded on the predicate, that the manner in which most of the engines used by defendant, in coupling and uncoupling cars on the line of its road, and frequently in its yards, is the standard of defendant’s duty to furnish safe and suitable appliances for the protection of its employés; this is not the law. But appellee insists, that these charges should have been given under the issue joined on the two special pleas numbered 2 and 3 — pleas of confession and avoidance. The first alleges in substance,that whilst it was true that the engine which was in use at the time plaintiff was injured did not have a platform, or other device, upon which plaintiff could stand while coupling and uncoupling, the engine in use at that time was constructed in the same manner as most of the engines were constructed in use by the defendant to which cars were coupled and uncoupled along its line of railroad'; that the engine-used at the time of plaintiff's injury was properly and safely constructed, aiid of the same pattern and standard as most of the engines used by defendant, was not ¡defective or out of repair, but was in good condition and proper repair, at the time plaintiff received his injuries. The third plea alleges substantially the same facts, and contains the additional averments, that the switch-engine used in the yard had become out of repair and useless for switching purposes, whereby it was necessary to send it to the shops for repair, and that defendant had no other engine to put in the yard. Whether these pleas presented a valid and substantial defense, it is unnecessary to inquire ; plaintiff did not demur to them, but accepted the issues tendered by the pleas. Though they may have presented informal or immaterial issues, plaintiff having joined issue thereon, it would have been a reversible error to refuse to give charges framed in reference to such issues, and the tendencies of the evidence to establish the truth of the pleas. If the material averments be established, defendant, is entitled to a verdict, whether the [221]*221pleas are sufficient or insufficient. But charges 5 and 6 omit from the hypothesis the facts alleged in the pleas, that the engine was properly and safely constructed, and was in good condition and proper repair, and could be safely used in its yards in coupling and uncoupling cars. For this reason, they were properly refused.
There is evidence tending to show that plaintiff stepped in between the engine and the car to pull the pin, and, failing to pull it, gave the engineer the signal to slack; in response to which the engineer, the engine having been reversed, threw the lever ahead, and as he did so plaintiff stumbled, and threw himself across the pilot, the heel of his shoe having caught on the top of the guard-rail. If such be the facts, the engineer was without negligence, and the injury to plaintiff was accidental. It does not require argument, or the citation of authorities, to support the proposition, that defendant is not responsible for an injury, the direct result of an accident incident to the business in which plaintiff was employed. This is the proposition asserted in charge 9, which should have been given.
In Mobile & Birmingham Railway Co. v. Holborn, supra, we laid down the rule, that in cases under the statute the plaintiff holds the affirmative of each of the statutory propositions on which his right of recovery depends, and the general rule applies that the burden of proof is on the party holding the affirmative. The same rule was subsequently declared in L. & N. R. R. Co. v. Davis, 8 So. Rep. 552. Charge 14 asserts this rule, but is objectionable because argumentative.
It being undisputed that plaintiff was an employ é of defendant, and a fellow-servant of the engineer in charge of the engine, which it is alleged was negligently run over him, he. is not entitled to recover under the first count, as we have construed it to be a suit by a person not in the employment of defendant, but lawfully on the track. The liability for an injury to an employé, caused by the negligence of a fellow servant, rests on entirely different principles from the liability to a stranger on the track by license or invitation. In the case of an injured employé, the complaint must contain other and distinct averments, whether seeking to enforce the common-law, or the statutory liability of the employer. The variance between the allegations of the first count and the proof is fatal.
Charges 20, 21, 22 and 28 are charges upon the effect of the evidence under separate and distinct counts; and charge 25 under the whole complaint. There being conflict in the evidence in some respects, and inferences to be drawn there[222]*222from, these charges were properly refused. While some of the charges, such as 1,3 and 4, assert correct legal propositions, they conclude with a direction to “return a verdict in favor of defendant’ under the special and separate count in reference to which they are framed. The complaint, as amended, contains six counls, as to each of which a similar charge was separately asked. Had there been but one count, or, being-several, had the charge upon the effect of the evidence applied to the whole complaint, there could be no objection to such conclusion of the charge; but, when there are two or more counts, the phraseology is subject to criticism. It is calculated to impress the jury with the idea that a separate verdict must be returned as to each count, though under some they may find for the plaintiff; its tendency is to mislead or confuse, and requires explanation. As this objection may be obviated on another trial, we shall express no opinion whether it authorized the refusal of the charges, and merely suggest that the safer practice would be to adopt the usual form of expression in such cases.
On the principles we have heretofore stated, the charge given at the instance of plaintiff asserts a correct legal proposition. Charges 17, IS, 19, 24 and 26 asked by defendant, are abstract; the principles of law therein asserted have no application to the first count. Charge 13 is somewhat involved and argumentative.
Where the injury is permanent, the plaintiff, in actions of this character, may recover compensation for the disabling-effects of the injury past and prospective. In estimating the damages, the loss of time, and the incapacity to do as profitable labor as before the injury, as well as the mental and physical suffering caused by it, are pertinent and legitimate factors. S. & N. R. R. Co. v. McLendon, 63 Ala. 266; Ala. Gt. So. R. R. Co. v. Yarborough, 83 Ala. 241. It may be that the portion of the general charge, to the effect that plaintiff is entitled to recover “what his services have been proven to be worth from the time of the injury, or what he could have earned but for the injury, from the time of such injury, to such time as he may reasonably expect to live, less what he may earn, if he earn anything in his present condition,” does not accurately state the necessary and legal damages ; but the exception is taken to two separate and distinct propositions of the general charge as a whole, the last of which is a correct proposition. Where such is the case, the exception is not available.
Reversed and remanded.