SHARPE, J.
The complaint counts on the maintenance by defendants of a fence forming part of a stock gap in such proximity to their track as to cause plaintiff’s intestate to be knocked from a train and killed while be was performing work which he as a brakeman or flagman in their employ was required to do. It does not in either of its three counts impute negligence or other wrong to any fellow servant of the intestate, and is, therefore, not brought under the employer’s act embodied in Chapter 43 of the Code. — Holland v. Tenn. Coal, Iron & R. R. Co., 91 Ala. 444; Mobile & Ohio R. R. Co., v. George, 94 Ala. 199; Seaboard Mfg. Co., v. Woodson, 94 Ala. 143. But the complaint is not for that reason demurrable, nor is it open to any objection raised by the demurrer. The action is to be regarded as brought under section 27 of the Code, which gives to a personal representative the right to maintain an action for a wrong causing the death of his intestate, if the intestate could himself have maintained an action for the wrong if it had not caused death. The liability which may exist under this statute is determinable by the rule of the common law, including those which permit a ser[561]*561vant to recover for injury caused by the wrong of the master hut denies the latter’s liability for injury received'at the hands of his fellow servant Avhen the injury is not attributable to fault of the master in commit-' ting the exercise of some function to an unfit person. Stewart v. Railroad Co., 83 Ala. 493.
Of all that is averred in plea 5 defendant had the benefit under the plea of the general issue. Hence if there Avas error in sustaining the demurrer to plea 5, it avus Avithout injury. — L. & N. R. R. Co., v. Hall, 87 Ala. 708. Flea 4 as it stood before amendment is not set out in the record, consequently the ruling on the demurrer to that plea as first filed cannot be reviewed.
Barrett, the. deceased, AArlien killed, was and had been for several Aveeks employed by the defendant, the North ern Alabama Itailway Company, as .a flagman on its passenger train. On the day of the- accident there Avas a hot box on one of the trucks of a coach, and Avhile the train Avas running Barrett stood upon the bottom step at the front of the coach with his back tOAvard the forAvard end of the train. and holding the step railing, leaned out beyond the side of the coach, to watch the hot box, Avhen he aauis struck by a wing of a stock gap on Avhieh a AArire was fastened. There aaaus eAd deuce fending to show that the conductor had told Barrett to AA'atch the box. The distance between the plank and AA'ire of the stock gap, and the -coach, was variously estimated by the Avitnesses; some placing it - at about three-feet and others at about fifteen inches, and some evidence indicated that below the step of the coach the distance Avas lessened by the AA'ire. The Avire had been attached to the fence by a bridge foreman of the Northern Alabama Kailway Company some time after the gap Avas first constructed and for the purpose of preArenting stock from passing through. The evidence 'was in some conflict as to whether the gap as first made aauis as Avide as others in use on this and other railroads. Whether the deceased Avas first caught by the plank of the fence or by the Avire, the eAddence was not clear. As tending to elucidate that matter the torn .pants worn [562]*562by the deceased when injured were properly allowed to be exhibited as • evidence. A witness was allowed to testify as to his observation of the distance between a fence and a coach of a train other than that upon Avliich deceased Avas injured. The only objection to this testimony being that it was not in rebuttal, the overruling of the objection may be referred to the unrevisable discretion of the trial court.
The conductor on direct examination having disclaimed any recollection of having instructed Barrett to watch the hot box, and having further testified to effect that Barrett could have Avatched the box from a position out of danger from the stock gap, it Avas permissible, for the purpose of contradicting that testimony for the defendant, to ask him on cross examination whether after the accident he said with reference to Barrett “a better boy never lived, and he lost his life doing his duty.”
The hvw independent of statute requires of employers the exercise of diligence for the prevention of injury to their employes from defective conditions in such places as the employer may provide for carrying on tl:e appointed work, and. a defect obnoxious to this requirement may arise from a thing which so narrows a railroad Avay as to endanger trainmen in the proper performance of their duties. — Ga. Pac. R. R. Co. v. Davis, 92 Ala.300; E. T. V. & G. R. R. Co. v. Thompson, 94 Ala. 636; Wilson v. L. & N. R. R. Co., 85 Ala. 269; McNamara v. Logan, 100 Ala. 187; Whipple v. N. Y. R. Co., 19 R. I. 587; 61 Am. St. Rep. 796; Pittsburg R. R. Co. v. Parrish, 28 Ind. App. 189; 91 Am. St. Rep. 120. The duty referred to goes only to the extent of exacting of employers the use of reasonable care, such as ordinarily prudent persons are accustomed to exercise in like matters. — L. & N. R. R. Co. v. Allen, 78 Ala. 494; Holland’s ease, supra; Dresser on Employer’s Liability, pp. 194-5.
As evidential of Avhat in the exercise of due care ought to luave been done in the construction and maintainance of the roadAvay, it was proper to consider the [563]*563usage prevailing on other Avell regulated railroads; but “all railroads are not required to conform to one standard/’ and safety may be conserved and, therefore, the duty of care performed by providiug a roadway not in conformity Avith such usage. — L. & N. R. R. Co. v. Hall. 87 Ala. 708; L. & N. R. R. Co. v. Jones, 30 Ala. 456; Richmond & Danville R. R. Co. v. Weems, 97 Ala., 270. In the part of the oral charge first excepted to this principle Avas ignored, and it aauis erroneously assumed that subject only to the defense of contributory negligence the. plaintiff Avould be entitled to recover if the track and stock gap in question Avas not such as Avere furnished on Avell regulated railroads generally, and if the failure to have ic so was the proximate cause of the death of plaintiff’s intestate. Such failure would not necessarily and as a matter of Iuav have established the charge at negligence. Whether it did-so, depended in part on whether the. duties of trainmen Avere such as in their proper execution might expose them to danger of collision Avith the structure, and this Avas a question about Avhich different conclusions might Avell have been draAvn from the evidence. Had there been no variance between the complaint, and the proof, the question of negligence on defendant’s part, and of contributory negligence Avould, under the eAddence, have been proper for the determination of the jury.
There Avas testimony uncontradicted and unimpeached showing that the railroad on Avhich the accident occurred AAras that of the defendant, the Northern Alabama liaihvay. Company; that the same AA’as not operated by the defendant, the Southern Hail way Company, and that the deceased was not in the employ of the latter company. The fact of which there Avas evidence, that the two companies were officered by the same persons, Avas not inconsistent AA'ith the positive testimony on this point, and could afford no just inference opposed thereto. On the direct authority of Dean v. The Railroad,
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SHARPE, J.
The complaint counts on the maintenance by defendants of a fence forming part of a stock gap in such proximity to their track as to cause plaintiff’s intestate to be knocked from a train and killed while be was performing work which he as a brakeman or flagman in their employ was required to do. It does not in either of its three counts impute negligence or other wrong to any fellow servant of the intestate, and is, therefore, not brought under the employer’s act embodied in Chapter 43 of the Code. — Holland v. Tenn. Coal, Iron & R. R. Co., 91 Ala. 444; Mobile & Ohio R. R. Co., v. George, 94 Ala. 199; Seaboard Mfg. Co., v. Woodson, 94 Ala. 143. But the complaint is not for that reason demurrable, nor is it open to any objection raised by the demurrer. The action is to be regarded as brought under section 27 of the Code, which gives to a personal representative the right to maintain an action for a wrong causing the death of his intestate, if the intestate could himself have maintained an action for the wrong if it had not caused death. The liability which may exist under this statute is determinable by the rule of the common law, including those which permit a ser[561]*561vant to recover for injury caused by the wrong of the master hut denies the latter’s liability for injury received'at the hands of his fellow servant Avhen the injury is not attributable to fault of the master in commit-' ting the exercise of some function to an unfit person. Stewart v. Railroad Co., 83 Ala. 493.
Of all that is averred in plea 5 defendant had the benefit under the plea of the general issue. Hence if there Avas error in sustaining the demurrer to plea 5, it avus Avithout injury. — L. & N. R. R. Co., v. Hall, 87 Ala. 708. Flea 4 as it stood before amendment is not set out in the record, consequently the ruling on the demurrer to that plea as first filed cannot be reviewed.
Barrett, the. deceased, AArlien killed, was and had been for several Aveeks employed by the defendant, the North ern Alabama Itailway Company, as .a flagman on its passenger train. On the day of the- accident there Avas a hot box on one of the trucks of a coach, and Avhile the train Avas running Barrett stood upon the bottom step at the front of the coach with his back tOAvard the forAvard end of the train. and holding the step railing, leaned out beyond the side of the coach, to watch the hot box, Avhen he aauis struck by a wing of a stock gap on Avhieh a AArire was fastened. There aaaus eAd deuce fending to show that the conductor had told Barrett to AA'atch the box. The distance between the plank and AA'ire of the stock gap, and the -coach, was variously estimated by the Avitnesses; some placing it - at about three-feet and others at about fifteen inches, and some evidence indicated that below the step of the coach the distance Avas lessened by the AA'ire. The Avire had been attached to the fence by a bridge foreman of the Northern Alabama Kailway Company some time after the gap Avas first constructed and for the purpose of preArenting stock from passing through. The evidence 'was in some conflict as to whether the gap as first made aauis as Avide as others in use on this and other railroads. Whether the deceased Avas first caught by the plank of the fence or by the Avire, the eAddence was not clear. As tending to elucidate that matter the torn .pants worn [562]*562by the deceased when injured were properly allowed to be exhibited as • evidence. A witness was allowed to testify as to his observation of the distance between a fence and a coach of a train other than that upon Avliich deceased Avas injured. The only objection to this testimony being that it was not in rebuttal, the overruling of the objection may be referred to the unrevisable discretion of the trial court.
The conductor on direct examination having disclaimed any recollection of having instructed Barrett to watch the hot box, and having further testified to effect that Barrett could have Avatched the box from a position out of danger from the stock gap, it Avas permissible, for the purpose of contradicting that testimony for the defendant, to ask him on cross examination whether after the accident he said with reference to Barrett “a better boy never lived, and he lost his life doing his duty.”
The hvw independent of statute requires of employers the exercise of diligence for the prevention of injury to their employes from defective conditions in such places as the employer may provide for carrying on tl:e appointed work, and. a defect obnoxious to this requirement may arise from a thing which so narrows a railroad Avay as to endanger trainmen in the proper performance of their duties. — Ga. Pac. R. R. Co. v. Davis, 92 Ala.300; E. T. V. & G. R. R. Co. v. Thompson, 94 Ala. 636; Wilson v. L. & N. R. R. Co., 85 Ala. 269; McNamara v. Logan, 100 Ala. 187; Whipple v. N. Y. R. Co., 19 R. I. 587; 61 Am. St. Rep. 796; Pittsburg R. R. Co. v. Parrish, 28 Ind. App. 189; 91 Am. St. Rep. 120. The duty referred to goes only to the extent of exacting of employers the use of reasonable care, such as ordinarily prudent persons are accustomed to exercise in like matters. — L. & N. R. R. Co. v. Allen, 78 Ala. 494; Holland’s ease, supra; Dresser on Employer’s Liability, pp. 194-5.
As evidential of Avhat in the exercise of due care ought to luave been done in the construction and maintainance of the roadAvay, it was proper to consider the [563]*563usage prevailing on other Avell regulated railroads; but “all railroads are not required to conform to one standard/’ and safety may be conserved and, therefore, the duty of care performed by providiug a roadway not in conformity Avith such usage. — L. & N. R. R. Co. v. Hall. 87 Ala. 708; L. & N. R. R. Co. v. Jones, 30 Ala. 456; Richmond & Danville R. R. Co. v. Weems, 97 Ala., 270. In the part of the oral charge first excepted to this principle Avas ignored, and it aauis erroneously assumed that subject only to the defense of contributory negligence the. plaintiff Avould be entitled to recover if the track and stock gap in question Avas not such as Avere furnished on Avell regulated railroads generally, and if the failure to have ic so was the proximate cause of the death of plaintiff’s intestate. Such failure would not necessarily and as a matter of Iuav have established the charge at negligence. Whether it did-so, depended in part on whether the. duties of trainmen Avere such as in their proper execution might expose them to danger of collision Avith the structure, and this Avas a question about Avhich different conclusions might Avell have been draAvn from the evidence. Had there been no variance between the complaint, and the proof, the question of negligence on defendant’s part, and of contributory negligence Avould, under the eAddence, have been proper for the determination of the jury.
There Avas testimony uncontradicted and unimpeached showing that the railroad on Avhich the accident occurred AAras that of the defendant, the Northern Alabama liaihvay. Company; that the same AA’as not operated by the defendant, the Southern Hail way Company, and that the deceased was not in the employ of the latter company. The fact of which there Avas evidence, that the two companies were officered by the same persons, Avas not inconsistent AA'ith the positive testimony on this point, and could afford no just inference opposed thereto. On the direct authority of Dean v. The Railroad, 98 Ala. 586, it must be held that because of the variance as appearing between the complaint and the proof as to- the alleged relation of employer and employe, there was no right to a verdict against either de[564]*564fendant, and tliat the general affirmative charge requested in behalf of the Northern Alabama Railroad Company ought to have been given. This is not opposed to the doctrine which ordinarily in actions' of tort brought against several malíes possible a recovery against less than the whole number of defendants. This' action though ex delicto is for an alleged tort growing-out of a contract, viz., the contract by which alone was created the relation which gives rise to the duty alleged to have been violated, and in such case proof of a contract different from that alleged constitutes a fatal variance. — Wilkinson v. Mosley, 18 Ala. 288; 22 Ency. Pl. & Pr. 565.
In the construction originally of the roadway, including the stock gap, the duty of using care was one which the railroad company was powerless to delegate so as to relieve itself of the consequences of negligence. Ga. Pac. R. R. Co. v. Davis, supra; Dresser on Employers’ Liability, pp. 197-8. This principle justifies the refusal of charges 11 and 12.
The narrowing of the gap by means of the wire having been done subsequent to the original construction and by a bridge foreman of his own volition, may have been the act of a fellow servant only; and charge 13 was, therefore, applicable and correct. — Mobile & Ohio Ry. v. Smith, 59 Ala. 245; Smoot v. M. & O. Ry., 67 Ala. 13; E. T., V. & Ga. R. R. Co. v. Thompson, supra.
Reversed and remanded.