McCLELLAN, J.
Action for damages, under the homicide statute (Code, § 2486), for wrongfully causing the death of appellee’s intestate, Baxter Guttery. The case was submitted to the jury upon the issues initiated by counts 5 and 6 as amended. They will be set out in the report of the appeal. The former attributes’ intestate’s death to willful or wanton misconduct on the part of servants or employees in charge of a train operated over defendant’s (appellant’s) railway, and the latter, to negligence of such servant’s or employees after the discovery of intestate’s peril from injury by the approaching engine and train.
[610]*610The homicide statute, which is penal, only in nature and effect, extends, by express declaration, the right or cause of action thereby established to include cases where the deceased “could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death.” So, if the wrongful act or omission for which the personal representative impleads the defendant would have sustained a right to sue in an action for injury only, instituted by the person injured, the statute effects to affirmatively establish a cause of action for the death attending the culpable act or omission. There is no room for consideration of the mere imputation appellant discusses in brief. Liability is the result, under the circumstances defined, of positive enactment. Hence the only question, in respect of pleading and proof in cases seeking to avail of the provisions of the homicide statute is, Does the case stated and made fall within the purview of the statute? If so, the liability established by the statute is fixed, unless avoided by exonerating act or omission on the part of the deceased.
The pleaded theory of defendant’s responsibility and accountability for Guttery’s death comprehends the assertion that for the wrongful or negligent acts or omissions of the Mobile & Ohio Railroad Company, resulting in the damnifying consequences averred, in the use of the defendant’s tracks, facilities, etc., under contract between them, the defendant is liable. The principle thus invoked is sound, has been established here, and is applicable to the pleadings and evidence presented on this appeal. Where a railroad company admits another railroad company to the joint, common use of its tracks, the owning company is liable to third persons for the negligence of the other company while enjoying the right of such use.—R. R. Co. v. Brown, 17 Wall. 445, [611]*611450, 21 L. Ed. 675; Ricketts v. Birmingham Street Ry. Co., 85 Ala. 600, 604, 605, 5 South. 353; Central of Ga. Ry. Co. v. Wood, 129 Ala. 483, 29 South. 775; Elliott on Railroads, § 475. The contract exhibited with plea 4 authorized the joint, common use by the hiring company of the tracks of the owning company, and expressly contemplated a joint occupancy of the tracks, as distinguished from such an exclusive enjoyment by the hiring company as would exempt the owning company from responsibility for the wrongful or negligent conduct or omission of its associate in use of the property. We know of no positive law that alters the legal status the stated doctrine establishes under the circumstances shown by the counts, by plea 4, and by the evidence adduced on the trial. Code, § 3497, does not do so. There was no error in overruling the demurrers to amended counts 5 and 6, in sustaining the demurrer to plea 4, and in refusing the general charge based upon the idea of the absence of responsibility of the defendant, the owning company, for the negligent or wrongful acts or omissions of the hiring company, the Mobile & Ohio Railroad Company.
. There was no error in allowing the inquiry, by plain-, tiff’s counsel on the examination in chief of W. B. Guttery, seeking to show the customary, frequent use by pedestrians of the track at the point where intestate* was killed. The fifth count as amended declared as for willful or wanton misconduct in running the engine upon intestate while he was walking along or on the track at that point; and evidence tending to show such customary, frequent use of the track thereat, by large numbers of pedestrians, in connection with knowledge thereof by the operatives charged was admissible under the issues made by that count.—Birmingham Sou. Ry. Co. v. Fox, 167 Ala. 281, 52 South. 889, and Sou. Ry. [612]*612Co. v. Forrister, 158 Ala. 477, 48 South. 69, among others. Sou. Ry. Co. v. Stewart, 179 Ala. 304, 60 South. 927, while holding for error the omission of the pleader to aver in the sixth count that Stewart’s intestate was within the custom alleged, along with the pleader’s catalogue of the facts and circumstances he essayed to enumerate, reiterated the doctrine of the Lee Case, 92 Ala. 271, 9 South. 230, at the same time noting the misconception of its effect that probably lead to the subsequent expansion of its principle to cases outside its intended limits. Under the rule of evidence reaffirmed in the Btewart Case evidence was admissible to the end indicated by the question propounded to Guttery.
Like considerations deny error in respect of the excerpt from the oral charge set out in assignment numbered 8.
The questions to the witness O’Rear and McCauley, set forth in assignments 6 and 7, respectively, were clearly objectionable. Responses to them would have been without any bearing on the issues involved on the trial.
There was no error in the refusal to defendant of the special instruction numbered 30. It pretermitted corn sideration by the jury of the feature of the case made by the wanton count under the phase of the evidence tending to show that the place at which intestate was stricken was a point customarily frequently used by large numbers of the public within the pertinent doctrine reaffirmed in Sou. Ry. Co. v. Stewart, 179 Ala. 304, 60 South., at pages 928 (second column) and 929 first column). If, however, that fault of the charge was ignored of effect or review here, it would seem that no injury attended its refusal to defendant, for that the court gave to the jury, at defendant’s request, charges [613]*613numbered 26, 27, 29, 36, which covered the substance of this charge numbered 30.
After giving, at defendant’s request, special charge numbered 34, the court, upon request of the jury, made an extended comment upon it. It is insisted that this comment was a qualification, not an explanation, of the charge. The latter the court may usually do without error; but the former it is error to do. The court has carefully considered the charge and the statements of the court in response to the jury’s request, and find-that statements of the court were in explanation, not in qualification, of the charge, and that the expressions made by the court were within the rule announced in Callaway & Truitt v. Gay, 143 Ala. 524, 529, 39 South. 277.
The evidence in this case is voluminous, it has been carefully considered, particularly in the light of the discussions thereof in the briefs. It would be entirely vain to undertake a detailed treatment and discussion of the evidence in the opinion. The conclusion is unescapable that the effect of the evidence was to require the submission to the jury of the issues made by the two counts on which the trial was had. There was evidence tending,
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McCLELLAN, J.
Action for damages, under the homicide statute (Code, § 2486), for wrongfully causing the death of appellee’s intestate, Baxter Guttery. The case was submitted to the jury upon the issues initiated by counts 5 and 6 as amended. They will be set out in the report of the appeal. The former attributes’ intestate’s death to willful or wanton misconduct on the part of servants or employees in charge of a train operated over defendant’s (appellant’s) railway, and the latter, to negligence of such servant’s or employees after the discovery of intestate’s peril from injury by the approaching engine and train.
[610]*610The homicide statute, which is penal, only in nature and effect, extends, by express declaration, the right or cause of action thereby established to include cases where the deceased “could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death.” So, if the wrongful act or omission for which the personal representative impleads the defendant would have sustained a right to sue in an action for injury only, instituted by the person injured, the statute effects to affirmatively establish a cause of action for the death attending the culpable act or omission. There is no room for consideration of the mere imputation appellant discusses in brief. Liability is the result, under the circumstances defined, of positive enactment. Hence the only question, in respect of pleading and proof in cases seeking to avail of the provisions of the homicide statute is, Does the case stated and made fall within the purview of the statute? If so, the liability established by the statute is fixed, unless avoided by exonerating act or omission on the part of the deceased.
The pleaded theory of defendant’s responsibility and accountability for Guttery’s death comprehends the assertion that for the wrongful or negligent acts or omissions of the Mobile & Ohio Railroad Company, resulting in the damnifying consequences averred, in the use of the defendant’s tracks, facilities, etc., under contract between them, the defendant is liable. The principle thus invoked is sound, has been established here, and is applicable to the pleadings and evidence presented on this appeal. Where a railroad company admits another railroad company to the joint, common use of its tracks, the owning company is liable to third persons for the negligence of the other company while enjoying the right of such use.—R. R. Co. v. Brown, 17 Wall. 445, [611]*611450, 21 L. Ed. 675; Ricketts v. Birmingham Street Ry. Co., 85 Ala. 600, 604, 605, 5 South. 353; Central of Ga. Ry. Co. v. Wood, 129 Ala. 483, 29 South. 775; Elliott on Railroads, § 475. The contract exhibited with plea 4 authorized the joint, common use by the hiring company of the tracks of the owning company, and expressly contemplated a joint occupancy of the tracks, as distinguished from such an exclusive enjoyment by the hiring company as would exempt the owning company from responsibility for the wrongful or negligent conduct or omission of its associate in use of the property. We know of no positive law that alters the legal status the stated doctrine establishes under the circumstances shown by the counts, by plea 4, and by the evidence adduced on the trial. Code, § 3497, does not do so. There was no error in overruling the demurrers to amended counts 5 and 6, in sustaining the demurrer to plea 4, and in refusing the general charge based upon the idea of the absence of responsibility of the defendant, the owning company, for the negligent or wrongful acts or omissions of the hiring company, the Mobile & Ohio Railroad Company.
. There was no error in allowing the inquiry, by plain-, tiff’s counsel on the examination in chief of W. B. Guttery, seeking to show the customary, frequent use by pedestrians of the track at the point where intestate* was killed. The fifth count as amended declared as for willful or wanton misconduct in running the engine upon intestate while he was walking along or on the track at that point; and evidence tending to show such customary, frequent use of the track thereat, by large numbers of pedestrians, in connection with knowledge thereof by the operatives charged was admissible under the issues made by that count.—Birmingham Sou. Ry. Co. v. Fox, 167 Ala. 281, 52 South. 889, and Sou. Ry. [612]*612Co. v. Forrister, 158 Ala. 477, 48 South. 69, among others. Sou. Ry. Co. v. Stewart, 179 Ala. 304, 60 South. 927, while holding for error the omission of the pleader to aver in the sixth count that Stewart’s intestate was within the custom alleged, along with the pleader’s catalogue of the facts and circumstances he essayed to enumerate, reiterated the doctrine of the Lee Case, 92 Ala. 271, 9 South. 230, at the same time noting the misconception of its effect that probably lead to the subsequent expansion of its principle to cases outside its intended limits. Under the rule of evidence reaffirmed in the Btewart Case evidence was admissible to the end indicated by the question propounded to Guttery.
Like considerations deny error in respect of the excerpt from the oral charge set out in assignment numbered 8.
The questions to the witness O’Rear and McCauley, set forth in assignments 6 and 7, respectively, were clearly objectionable. Responses to them would have been without any bearing on the issues involved on the trial.
There was no error in the refusal to defendant of the special instruction numbered 30. It pretermitted corn sideration by the jury of the feature of the case made by the wanton count under the phase of the evidence tending to show that the place at which intestate was stricken was a point customarily frequently used by large numbers of the public within the pertinent doctrine reaffirmed in Sou. Ry. Co. v. Stewart, 179 Ala. 304, 60 South., at pages 928 (second column) and 929 first column). If, however, that fault of the charge was ignored of effect or review here, it would seem that no injury attended its refusal to defendant, for that the court gave to the jury, at defendant’s request, charges [613]*613numbered 26, 27, 29, 36, which covered the substance of this charge numbered 30.
After giving, at defendant’s request, special charge numbered 34, the court, upon request of the jury, made an extended comment upon it. It is insisted that this comment was a qualification, not an explanation, of the charge. The latter the court may usually do without error; but the former it is error to do. The court has carefully considered the charge and the statements of the court in response to the jury’s request, and find-that statements of the court were in explanation, not in qualification, of the charge, and that the expressions made by the court were within the rule announced in Callaway & Truitt v. Gay, 143 Ala. 524, 529, 39 South. 277.
The evidence in this case is voluminous, it has been carefully considered, particularly in the light of the discussions thereof in the briefs. It would be entirely vain to undertake a detailed treatment and discussion of the evidence in the opinion. The conclusion is unescapable that the effect of the evidence was to require the submission to the jury of the issues made by the two counts on which the trial was had. There was evidence tending, among other things, to show: The living presence of Guttery on the track at the place his remains were found; marks of blood on the counterbalance of the driving wheel of the Mobile & Ohio engine Avhich passed soon after Guttery went toward the place where his body was later found; great speed, without signals or warnings given by this train before and as it approached the place of injury; that the enginemen were looking ahead over that point on the track; that the headlight was giving good service; that to one looking ahead, as these operatives were said to be doing, along that section of track a man could be seen not[614]*614withstanding the curve in the track which, with the engine moving, might have deflected the range of the headlight to the side; that Guttery’s foot may have become caught and fastened in the switch point; that the discovery of his position of peril by the enginemen might have been made, and w;as made, at a sufficient distance from him to have enabled them to stop the engine before it reached him; and that this place was, about that time, customarily used by large numbers of pedestrians, of which asserted fact these operatives were aware. The engineer testified that, according to orders, he was looking ahead on this occasion along the track for a train that usually preceded his through the Jasper railroad yard. Certainly it cannot be affirmed as a matter of law that in observing this duty his purpose in looking ahead confined or restricted his vision. If this engineer was looking ahead and saw intestate in a position of peril ahead of his moving engine, and so far removed as to allow opportunity, skilfully availed of, to avert injury to him, it was, according to repeated deliverance here, a question for the jury to determine whether his omission to act as duty required was, at the time, characterized by those elements of wrongful purpose or wanton indifference to which the law attributes the most aggravated wrong — that declared on in the fifth count as amended. The decision in Carlisle v. A. G. S. Ry. Co., 166 Ala. 591, 52 South. 341, does not work a departure, in the particular consideration, from Bush's Case, 122 Ala. 470, 26 South. 168; Shelton’s Case, 136 Ala. 191, 34 South. 194; Hyde's Case, 164 Ala. 162, 51 South. 368; Central of Ca. Ry. Co. v. Stewart, 178 Ala. 651, 59 South. 507; among others in their line.
In Carlisle's Case, supra, the evidence was that such a lookout was, on the occasion, being maintained by [615]*615the trainmen as was consistent with the perfomance of other duties, and. there was no evidence that deceased was on the track ahead of the engine. Here there was evidence upon which the jury could predicate a finding that the lookout was along the track at the place where Guttery was killed — a lookout not qualified by the then performance of other duties that took the view of the operative away from this section of the track. The facts recited in the opinion in Sou. Ry. Co. v. Drake, 166 Ala. 540, 51 South. 966, were radically different from those disclosed by the record here.
No error being shown, the judgment must be affirmed.
Affirmed.
Sayre, de Graffenried, and Gardner, JJ., concur.