MeOLELLAN, C. J.
To those counts of the complaint. Avhich ascribed the death of plaintiff’s intestate to the. negligence of the railway company, the defendant pleaded the general issue1 and three pleas of contribu-torv negligence. The first, of these, being plea 2, is in the following language: “Defendant, says that the plaintiff’s intestate, said Edward IT. Shelton, was guilty of contributory negligence, which negligence proximately contributed to his injury, in this, that he at[207]*207tempted to cross the track in front of a moving engine without first stopping, looking and listening, and was run over and killed, wherefore it says it not liable.” The 3d and 4th of these special pleas aver that the negligence of plaintiff's intestate which proximately contributed t.o his injury and death consisted of an attempt on his part to step upon the foot-board of a moving engine or tender, in which attempt he missed his footing, fell under the cars and was run over and killed. There was evidence tending to support these latter pleas, but, on the other hand,-there was evidence upon which the jury might have concluded that he made no such attempt, but that lie was stricken by the engine as he was walking along or in the act of crossing the track in front of it, and was thus run over and killed. If the facts were in line with this tendency of the evidence, the striking and running over and killing Shelton was not seen by 'anybody so far as the evidence discloses' and no witness undertakes to state the attending circumstances. It is contended for appellant that the intestate must have been killed, if thus stricken by the engine, in consequence either of going upon the track without stopping and looking and listening for the approaching engine and hence in ignorance of its approach, or of attempting to cross or pass along the track immediately in front of it having a knowledge of its approach; or, in other words, that, where death results to a person from being knocked down or run over by an engine the approach of which could have been known to him by the exercise of due care there is a presumption that he was guilty of negligence, contributing to the result, either in going upon the track without taking the measures enjoined upon him as a man of ordinary care and. prudence to ascertain whether it was safe for him to do so, or in going upon, the track when he had taken such measures and ■thereby ascertained that the engine was 'approaching so nearly that his person would he endangered by doing so. It- is not necessary for us to decide in this case whether such presumption arises on the. facts stated, for the concession that it does arise will not help the appellant. The presumption'would not support the second plea, the only plea having any bearing in this connection. It [208]*208would bey in a sense, a dual presumption, and alternative in its operation. It would be a presumption either till at lie was killed in consequence of his negligence in not stopping, and looking and listening for the engine before going on the track, — which negligence is pleaded, —or that he was killed in consequence of his negligence in going upon the track in front of the approaching engine when, by reason of having stopped, looked and listened, or by some other means, he knew that the engine was approaching and in dangerous proximity to a person on the track-at that place — which negligence is not pleaded at all. And the presumption sustains neither the negligence pleaded nor the negligence not pleaded affirmatively, hut only the one or the other alternatively; and it would be the purest conjecture on the part of the jury to say that Shelton’s death resulted from his negligence alleged in the plea, rather than from bis negligence, evidenced in the same way and to the same degree, which is not alleged in this or any other plea of contributory- negligence. The precise point in principle was so determined by this court in the case1 of Tinney v. Central of Georgia R’y Co., 129 Ala. 523, and upon the consideration there adverted to — in line with what is said above — we hold here, conceding the position of appellant’s counsel in respect of presumptions of negligence when a person is run over and killed by an engine which he saw approaching or might have seen by the exercise of due care, that it cannot he said that its plea of contributory negligence was proved, when upon the evidence tending to support it the jury1 might with equal propriety have found that Shelton was not guilty of the negligence pleaded but of negligence which was not pleaded. Contributory negligence is a special and affirmative defense. T’o be availed of it must he pleaded with particularity. -And no other acts of negligence than those thus specially pleaded can he nroved, and if proved they cannot he made the prcdicatefor a verdict for the defendant. — Ala. Mid. R’y Co. v. Johnson, 123 Ala. 197; Birmingham R’y & Elec. Co. v. City Stable Co., 119 Ala. 615. As the presumption relied upon to support defendant’s sec[209]*209ond plea did not necessarily and affirmatively sustain it, but in equal degree went to support another state of facts constituting contributory negligence which was not pleaded, instead of the state of facts which was pleaded, it cannot be said that the court should have given the-affirmative charge, for defendant against the counts for negligence on its part.
One count of the complaint, the 44th, charges that in the operation of a locomotive engine over and across Water street in the city of Mobile, the defendant “wantonly run over and killed Edward H. Shelton * * who was then and there upon the track of the defendant.” We are clear to the conclusion that this count is not supported by the evidence as to the character of the place at which Shelton was killed, taken in connection with the evidence as to the manner in which the engine was driven upon and over it. The place was at the intersection of Beauregard and Water streets in the city of Mobile where defendant’s track upon which Shelton was killed crosses Water street on Beauregard street. The direction of this track across Water street is not, however, the same as Beauregard street, but it énters upon both streets at the southeast corner of their intersection, and proceeds thence in a west-by-north direction across Water' street out into Beauregard street curving the while a little to the south until finally it unites with another of defendant’s tracks which runs due east, and west along Beauregard street. This junction is about one hundred and fifty feet west of Water street. The evidence shows that Shelton was proceeding along Beauregard street and that if he was stricken by the locomotive it was while he was passing over the track of defendant where it runs diagonally from the southeast corner of the two streets across Water street and out into Beauregard street. This, track in gaining its junction with defendant’s main track running upi and down through Beauregard street passes diagonally over an intervening track of the Louisville & Nashville Railroad Company, also running east and west, along Beauregard street, the space of contact between the two 'in effecting this crossing covering and extending several feet on each side of the west line of Water street. This Louisville & [210]*210Nashville track all' along there for several hundred feet had planks, making a floor, betAveen the rails, and seems to haAre been customarily used as a Avalk by persons passing along Beauregard street. It may be that Shelton used this Avalk as he came, from Commerce up Beauregard street to Water street just before the disaster.
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MeOLELLAN, C. J.
To those counts of the complaint. Avhich ascribed the death of plaintiff’s intestate to the. negligence of the railway company, the defendant pleaded the general issue1 and three pleas of contribu-torv negligence. The first, of these, being plea 2, is in the following language: “Defendant, says that the plaintiff’s intestate, said Edward IT. Shelton, was guilty of contributory negligence, which negligence proximately contributed to his injury, in this, that he at[207]*207tempted to cross the track in front of a moving engine without first stopping, looking and listening, and was run over and killed, wherefore it says it not liable.” The 3d and 4th of these special pleas aver that the negligence of plaintiff's intestate which proximately contributed t.o his injury and death consisted of an attempt on his part to step upon the foot-board of a moving engine or tender, in which attempt he missed his footing, fell under the cars and was run over and killed. There was evidence tending to support these latter pleas, but, on the other hand,-there was evidence upon which the jury might have concluded that he made no such attempt, but that lie was stricken by the engine as he was walking along or in the act of crossing the track in front of it, and was thus run over and killed. If the facts were in line with this tendency of the evidence, the striking and running over and killing Shelton was not seen by 'anybody so far as the evidence discloses' and no witness undertakes to state the attending circumstances. It is contended for appellant that the intestate must have been killed, if thus stricken by the engine, in consequence either of going upon the track without stopping and looking and listening for the approaching engine and hence in ignorance of its approach, or of attempting to cross or pass along the track immediately in front of it having a knowledge of its approach; or, in other words, that, where death results to a person from being knocked down or run over by an engine the approach of which could have been known to him by the exercise of due care there is a presumption that he was guilty of negligence, contributing to the result, either in going upon the track without taking the measures enjoined upon him as a man of ordinary care and. prudence to ascertain whether it was safe for him to do so, or in going upon, the track when he had taken such measures and ■thereby ascertained that the engine was 'approaching so nearly that his person would he endangered by doing so. It- is not necessary for us to decide in this case whether such presumption arises on the. facts stated, for the concession that it does arise will not help the appellant. The presumption'would not support the second plea, the only plea having any bearing in this connection. It [208]*208would bey in a sense, a dual presumption, and alternative in its operation. It would be a presumption either till at lie was killed in consequence of his negligence in not stopping, and looking and listening for the engine before going on the track, — which negligence is pleaded, —or that he was killed in consequence of his negligence in going upon the track in front of the approaching engine when, by reason of having stopped, looked and listened, or by some other means, he knew that the engine was approaching and in dangerous proximity to a person on the track-at that place — which negligence is not pleaded at all. And the presumption sustains neither the negligence pleaded nor the negligence not pleaded affirmatively, hut only the one or the other alternatively; and it would be the purest conjecture on the part of the jury to say that Shelton’s death resulted from his negligence alleged in the plea, rather than from bis negligence, evidenced in the same way and to the same degree, which is not alleged in this or any other plea of contributory- negligence. The precise point in principle was so determined by this court in the case1 of Tinney v. Central of Georgia R’y Co., 129 Ala. 523, and upon the consideration there adverted to — in line with what is said above — we hold here, conceding the position of appellant’s counsel in respect of presumptions of negligence when a person is run over and killed by an engine which he saw approaching or might have seen by the exercise of due care, that it cannot he said that its plea of contributory negligence was proved, when upon the evidence tending to support it the jury1 might with equal propriety have found that Shelton was not guilty of the negligence pleaded but of negligence which was not pleaded. Contributory negligence is a special and affirmative defense. T’o be availed of it must he pleaded with particularity. -And no other acts of negligence than those thus specially pleaded can he nroved, and if proved they cannot he made the prcdicatefor a verdict for the defendant. — Ala. Mid. R’y Co. v. Johnson, 123 Ala. 197; Birmingham R’y & Elec. Co. v. City Stable Co., 119 Ala. 615. As the presumption relied upon to support defendant’s sec[209]*209ond plea did not necessarily and affirmatively sustain it, but in equal degree went to support another state of facts constituting contributory negligence which was not pleaded, instead of the state of facts which was pleaded, it cannot be said that the court should have given the-affirmative charge, for defendant against the counts for negligence on its part.
One count of the complaint, the 44th, charges that in the operation of a locomotive engine over and across Water street in the city of Mobile, the defendant “wantonly run over and killed Edward H. Shelton * * who was then and there upon the track of the defendant.” We are clear to the conclusion that this count is not supported by the evidence as to the character of the place at which Shelton was killed, taken in connection with the evidence as to the manner in which the engine was driven upon and over it. The place was at the intersection of Beauregard and Water streets in the city of Mobile where defendant’s track upon which Shelton was killed crosses Water street on Beauregard street. The direction of this track across Water street is not, however, the same as Beauregard street, but it énters upon both streets at the southeast corner of their intersection, and proceeds thence in a west-by-north direction across Water' street out into Beauregard street curving the while a little to the south until finally it unites with another of defendant’s tracks which runs due east, and west along Beauregard street. This junction is about one hundred and fifty feet west of Water street. The evidence shows that Shelton was proceeding along Beauregard street and that if he was stricken by the locomotive it was while he was passing over the track of defendant where it runs diagonally from the southeast corner of the two streets across Water street and out into Beauregard street. This, track in gaining its junction with defendant’s main track running upi and down through Beauregard street passes diagonally over an intervening track of the Louisville & Nashville Railroad Company, also running east and west, along Beauregard street, the space of contact between the two 'in effecting this crossing covering and extending several feet on each side of the west line of Water street. This Louisville & [210]*210Nashville track all' along there for several hundred feet had planks, making a floor, betAveen the rails, and seems to haAre been customarily used as a Avalk by persons passing along Beauregard street. It may be that Shelton used this Avalk as he came, from Commerce up Beauregard street to Water street just before the disaster. The evidence Avas conflicting as to the number of people aat1io ordinarily passed the point where Shelton was 'Stricken at the. hour of this occurrence, about 7:15 o’clock on a Avin ten's evening; but there is no conflict as to the fact that on this occasion there wqre certainly not more than three people at or near the. place, other than the crew of defendant’s train. But Avhatever the jury might have concluded as to the extent, and frequency of the use of this crossing ordinarily at that hour of the night, there Avas no room for a conclusion on their part that defendant’s employes on the. occasion in question acted recklessly or wantonly in driving the engine upon and 0Arer it, so far as the character of the. pla.ee is concerned. The evidence is Avitlxout conflict that Avhen the engine approached, Avent upon and passed over Water street its hell Avas being constantly rung and its headlight Avas burning brightly. The evidence, is equally free from conflict to show that the rate of speed of the engine all along there was very sIoav — probably not over four, certainly not over five miles an lionr. Conceding' the fact as to the extent of the use of this crossing t.o he the extreme Avhich any of the evidence tended to show, it yet can by no means be said that to drive an engine AAritli its bell constantly ringing and its headlight brightly burning at such rate of speed, not faster than a man can Avalk, over that crossing would likely or probably result in injury to persons on the crossing; and, therefore, it not only cannot be said that the enginemen acted recklessly or Avantonly in so driving it, but the fact that they did so drive it affords no basis for a conclusion of Avantonness to be draAvn by the jurv. The ringing- of the bell avrs a call to passers-by to avoid the track; the rays of the headlight on that dark night Avas notice eAren to the deaf (and there aauis evidence, tending to sIioav that Shelton Avas partially deaf but none that the enginemen knew it), that [211]*211the engine was approaching, and. the slow approach of the. engine, afforded abundant opportunity for persons on or near the track to conserve their safety by acting upon these, warnings of danger. It is trite the city ordinance required a flagman to be on the front of the engine in crossing this street, that no flagman was there on this occasion and that this was negligence on the part of the defendant. But it was negligence simply — against which, of course, contributory negligence on the part of the intestate would be a defense — and the absence of such flagman did not make it incumbent upon those in charge of the engine to assume that persons; would probably stand upon the track in the growing glare of the headlight, with the warning clang of the bell in their ears and'be run over,' because there was nobody there to tell them by word of mouth, what. — as the enginemen did have a right to assume — they already knew — that the engine was approaching. The question is to be considered from the point of view of the engineer, and it T simply this: Would a man of ordinary prudence in the place of the engineer have had a consciousness that to run the engine on this; crossing as this engine was ran would probably or was liable or likely to result in injury to somebody on the. track at the crossing; and we are. convinced that there was nothing in the situation or in what the engineer did upon which the jury would lia.ve been authorize*! to comdude that there was. such consciousness of the peril to others of his conduct as would fill the charge of wantonness.
What we have ‘said above has reference solely to the character of the place at which Shelton was killed, assuming that he was stricken by.the engine, and to the manner of driving the engine; over that place, the discussion involving no consideration as to whether the enginemen knew as a fact dissociated from the character of the place that Shelton was in a position of peril in front of the engine in time to. have conserved bis safety lry stopping the engine or by cheeking its speed. It is now to be determined whether there was any evidence adduced tending to show that the. engineer or fireman saw Shelton so in a position of peril and then failed to fake proper action to avert the disaster, for [212]*212if knowing of liis perilous position they neglected to take measures to save him and which if taken would have saved him, this would he such negligence of the defendant as would entitle plaintiff to recover notwithstanding Shelton was himself negligent in having put himself in that position, and if with knowledge of his peril they, or either of them, purposely or consciously omitted action to save and which would have saved him, this would be wantonness for .which the company would be liable however negligent Shelton may have been. Moreover, if they, or either of them, knew of his peril, and could have averted the catastrophe and did not, it was open to the jury i.o find that their failure to make preventive effort was wanton. Now as to 'the evidence in this connection : The engineer and fireman-'each testified that he was looking ahead of the engine all through this operation of approaching and crossing Water street and that he saw nobody in front of the engine. McDowell, the flagman, testified that when the engine was yet fifty feet from Water street, and approaching it, he saw a man for a few moments about the middle of the crossing of that street, that he saw him by the rays of the headlight, that these after a few moments passed over this man and he could not then see him as the night, was quite dark. It is insisted for appellee that as both the engineer and fireman were looking ahead at that time, they must also have seen this man, or that, the jury had a right to find that they did see this man, and further to infer from all the circumstances that this person then on the crossing was Shelton. This may be conceded. But the concession does not import the right of the jury to find that the engineer or fireman was guilty of wantonness or even negligence in not taking 'action with reference to this man’s presence on the track at that time and place. He was then seventy - five feet away from the engine. The,engine veas moving slowly, as we have seen. The bell was ringing. The man bad just, been enveloped in the glare of the headlight and its rays had lifted above him, and were, of course, still visible in front, of him if his back was toward the engine. If he was facing the engine he could not have failed to see it. Under these circumstances [213]*213conceding' tliat tlie enginemen tlius saw Skelton, they undoubtedly had the eight to assume that he knew of the approach of the engine and would avail himself of the amide time and opportunity at his command to get off the track before the engine reached him. Indeed, considering the rate of speed of the engine and the distance he was in advance if it, he might well have proceeded along the track beyond the point a! which it stopped after passing Water street, before it overtook him. That if the enginemen saw this man — and he wa. Shelton — only when, or not after, McDowell saw him, there was no basis for a finding of either negligence or wantonness on the part of either of them in failing to control the engine with reference to him: .He was in no peril to the apprehension of prudent men in their position.
But theme is yet another phase of the evidence which appellee insists tends to support the charge, of wantonness. As we have seen it was open to the jury to find that Shelton was on the track in front of the engine and was run over and in that manner killed. It is also to he recalled that both the engineer and fireman testified that they were constantly looking ahead along the track as they crossed Water street. The jury had a right to find that they saw the man whom McDowell saw on the crossing, and that that man was Shelton, as we have indicated. These findings, as we have also indicated, would not authorize the jury to conclude that the enginemen were guilty of wantonness. But the engineer further testified that “the light from the. headlight will enable an engineer to see a person in front of the engine distinctly as close as eight or ten feet to the engine. If the person is on the fireman’s side, the fireman can see him. If he was on the fireman’s, side of the engine he would have to be about fifteen feet or more in front of the engine for me to see him. If he was on my side of the engine I could see Mm within two feet of the engine. - I could [on that occasion;']; have seen anybody on my side-of the engine, and I could see a man fifteen feet in front of the engine on the left side, and I could have seen on the left side more than fifteen feet, but not closer. The fireman could see a man on his [214]*214side of tlie track.” Now, to summarize, we have tendencies of the evidence presenting this case: Shelton was on the track of the crossing seventy-five feet in front of the engine. He remained there till the engine reached him and ran over and killed him. The engineer and fireman were all the while looking ahead. Both of them could have seen him from the time McDowell saw him until the engine was within fifteen feet of him, if lie was on the side of the track. After the engine had attained that proximity, the engineer could still have seen him until the engine got within two feet of him, if he was on the right hand side of the track. Similarly, if he was on the left hand 'side, he would have continued in view of the fireman till the engine was within two feet of him. If he was in the center of the track both the engineer and the fireman could have seen him until the engine was within eight feet of him. Very clearly if either of them did not see him standing there on the track while, the engine reduced the distance to him from seventy-five to two or .even eight feet, the jury were authorized to find that his position was one of manifest peril and that a sense of it was impressed upon the enginemen. The engine could have been stopped in five feet. Its slow motion could lra.ve been materially reduced in two feet. Seeing him there, they could have averted the. danger to him by stopping the engine. They made no effort to stop it, and he was run upon and killed. The important question yet remains: Did the engineer or fireman actually see him in this perilous position? Or, rather, does the evidence we have detailed afford the basis for an inference by the jury that one or both of them did in fact see him in such position? Both of them testified that they did not see him or anybody on the track at that time and place. But might not the jury find to the contrary notwithstanding? We think so. The jury were not bound to believe or disbelieve the testimony of these witnesses in its entirety. They could believe that they were looking ahead at the time, and that they could have seen a man on the track, and disbelieve their statements that they did not see any one on the track. And the conclusion on the evidential tendencies: under consideration would be drawn [215]*215thus: Shelton was in a position of manifest peril on the track in front of the engine, lie was in vieAV of the enginemen. They were looking- along the track where lie ivas. Therefore, they must have seen him, and this though they testify that they did not. — Ensley Railway Co. v. Chewning, 98 Ala. 24, 31; Louisville & Nashville Railroad Co. v. Trammell, 93 Ala. 350, 354. It is upon these considerations that we hold the trial court’s rulings on instructions requested in relation to the charge of wantonness made by the 44th count to be free from error.
It is stated in the brief for appellant that “the negligence averred in the 10th count consisted in the fact that the engine was moving around a curve and passing therefrom initoi one of the public streets of the city of Mobile, in the night, time; without giving a sufficient warning- of its approachand a like statement is made in the brief for appellee. The 10th count found in this record, however, contains no such averment, its sole allegation of negligence being that the defendant “in the operation thereof [the engine] negligently ran over and killed Edward H. Shelton.” The ground of demurrer which is discussed in the brief is, therefore, not apt, and the arguments upon it are abstract.
Appellant assigns as error the overruling of its demurrer to the 14th count, and insists upon this assignment in the brief. The appellee argues in support of the supposed action of the court overruling the demurrer to this count. But it appears by the record that the demurrer to this count was sustained: The judgment to that effect was rendered on January 28th, 1902, and is as follows: “This, day came the parties by their attorneys, and this cause coming on to be heard, and the defendant’s demurrers to the 14th, 21st, 22nd, 23rd and 46th counts of complaint as amended Jan’y 20, 1902, being argued by counsel and understood, by the court: It is ordered and adjudged by the court that the defendant’s said demurrers to 14th, 21st, 22nd, 23rd and 46th counts of complaint as amended on Jan’y 20, 1902, be and they are hereby sustained.”
It will suffice to say of the action of the court denying defendant’s, motion to amend its answers to interroga-[216]*216lories propounded to it by plaintiff: under the statute, that it involved no injury to tlie defendant. Tlie amendment proposed was to- strike out certain answers made by tlie employes of defendant on information and belief and insert in lieu thereof the same statements made by the employes who had knowledge of the facts set forth in them. These answers were subsequently stricken out on plaintiff's motion, and the employes having knowledge of the facts were subsequently examined as witnesses by the defendant and fully deposed to every fact sought to be inserted in the answers to the statutory interrogatories. On this state, of the case, it is plain that defendant suffered no detriment from the denial of his motion to amend its answers to the interrogatories.
The court did not err in striking from such answers the statement by the person making them that a flagman did not precede the engine over' the crossing “for tlie reason that the engine was moving very slowly and expected to stop- on the ci’ossing or just on the other side of the crossing." Turner and Roach, by whom the defendant answered the interrogatories, could not except from hearsay know why McDowell, the flagman, did not precede the engine on this occasion across Water street, nor why Doyle, the engineer, did not have him do it; and surely they could not know that the engine, or tlie engineer, “expected" to stop just beyond the crossing. Moreover, the reasons for the failure to have the crossing flagged were wholly immaterial.
It is not conceivable that defendant could have been prejudiced by the plaintiff’s reading to the witness Nicholson his examination on a former trial as stenog-graphically reported. To the contrary, this would naturally be of benefit to the defendant by way ■ of refreshing- the memory of its witness. It does not appear that this import of tlie former examination was introduced in evidence or was read to or even in the presence of the jury, though the presence of the jury when it was being read to the witness would be of no consequence.
We are not prepared to say that tlie evidence was so overwhelming to the conclusion that Shelton was killed in an effort to get upon the running board of the. engine [217]*217or tender, as -deposed by Harrison Baker, that the circuit court erred in overruling defendant’s motion for a new trial; and that is tlie only theory of the case upon which there could be any serious doubt as to the propriety of that action, especially in view of the state of the pleadings as to contributory negligence.
We have thus considered all the rulings of the trial court which 'are discussed, in the brief for appellant. We find no error in them; and the judgment must he affirmed. .