SIMPSON, J.
— -The complaint is for damages on account of the death of the plaintiff’s (appellee’s) intesstate, Alonzo Smith, from being struck by a train of defendant’s cars within the corporate limits of Tuscaloosa.
The counts of the complaint which went to the jury were all for subsequent negligence, except one which was for wantonness. Plea 13, in reply to the counts for subsequent negligence, alleged “that, being on or in dangerous proximity to the track of the defendant, in' front of a moving train or locomotive thereon, he negligently remained on said track or in dangerous proximity thereto until he was struck by said engine or locomotive, when he knew that to do so would likely or probably result in injury to him.” The court sustained a demurrer to said plea, and it was afterward amended; but the insistence of the appellant is that the court erred in sustaining said demurrer to said plea 13. It may be admitted that, in the opinion of the writer, there is much force in the argument and authorities produced *620by the appellant to the effect that one 'who, being originally guilty of contributory negligence, necessarily continues to be so negligent, so long as he remains in the position of peril, but our own court has spoken, with no uncertain sound, on this subject, and has said: “In order, however, for him (plaintiff) to be guilty of subsequent or concurrent negligence, he must have been conscious of his peril at that particular time.” Also, that “it would doubtless be true, in the case at bar, that; if the intestate remained on the track after becoming conscious of the immediate approach of the train, and could have gotten out of the way, but failed to do so, he would have been guilty of negligence subsequent to or concurrent Avith the subsequent negligence of the defendat’s servants. * * * But if, for any reason, the intestate did not know of the immediate approach of the train, he Avas not therefore conscious of imminent peril, and Avould not be guilty of negligence subsequent to, or concurrent Avith the negligence of the defendant’s servants.” — A. G. S. R. Co. v. McWhorter, 156 Ala. 269" court="Ala." date_filed="1908-05-14" href="https://app.midpage.ai/document/alabama-great-southern-railroad-v-mcwhorter-7363573?utm_source=webapp" opinion_id="7363573">156 Ala. 269, 277, 278, 47 So. 84" court="Ala." date_filed="1908-05-14" href="https://app.midpage.ai/document/alabama-great-southern-railroad-v-mcwhorter-7363573?utm_source=webapp" opinion_id="7363573">47 South. 84, 87. And in another case this court said: “In order to make a good plea, it must be shown that the contributory negligence relied on Avas the negligent act or omission of the injured party Avith a knoAvledge of the then present and impending peril.” —Southern Railway Co. v. Stewart, 153 Ala. 133" court="Ala." date_filed="1907-11-28" href="https://app.midpage.ai/document/southern-railway-co-v-stewart-7363108?utm_source=webapp" opinion_id="7363108">153 Ala. 133, 45 South. 51, 52. The facts that in the McWhorter Gase the plaintiff Avas probably asleep, and in the Steioart Case he Avas drunk and cIoaati, do not affect the principle, but rather emphasize it; the clear meaning of those cases being that, if the plaintiff Avas in such a condition or position that he could not be conscious of the particular peril then pending, he could not be guilty of contributory negligence. Said plea 13 does not allege or shoAV that the plaintiff’s intestate Avas aware of the then *621impending peril, to wit, the approach of the moving-train. The allegation that he knew that if he remained there it “would likely or probably result in injury to him” was equally true as to his initial contributory negligence. There was no error in sustaining the demurrer to said plea 13. We have treated of the assignment on the sustaining of the demurrer to this plea first, because it more nearly approaches a correct plea than either of the others, and, from what has been said, it results that there was no error in sustaining demurrers to the other pleas. What Avas said in the case of Brown v. St. L. & S. F. R. Co., 171 Ala. 310" court="Ala." date_filed="1911-04-11" href="https://app.midpage.ai/document/brown-v-st-louis--s-f-r-r-7365533?utm_source=webapp" opinion_id="7365533">171 Ala. 310, 55 South. 108, does not militate against Avhat Ave have here said. Plea 3, in that case, alleged “that after finding himself in a place of danger upon said trestle, and in danger of being run over by said approaching train, he nevertheless negligently ran along said trestle and on said track, in the direction of the approaching engine,” etc., sIioaving that the plaintiff was fully conscious of the impending peril.
The court erred in giving charge 10, at the request of the plaintiff. The pleading and evidence presented, for the consideration of the jury, the question of contributory negligence and the charge ignores that issue, if it is not otherwise faulty. — Ala. Steel & Wire Co. v. Thompson, 166 Ala. 634, 638, 50 So. 93" court="Ala." date_filed="1909-05-24" href="https://app.midpage.ai/document/clarke-v-dunn-7364322?utm_source=webapp" opinion_id="7364322">50 South. 93; Frierson v. Frazier, 142 Ala. 233, 236, 37 So. 825" court="Ala." date_filed="1904-12-20" href="https://app.midpage.ai/document/frierson-v-frazier-3237370?utm_source=webapp" opinion_id="3237370">37 South. 825.
Charges 7 and 43, requested by the defendant, are argumentative, and were properly refused.
Charge 26 was properly refused, because it relates to initial, and not to subsequent, contributory negligence.
Charge 32, requested by the defendant, was invasive of the province of the jury, and properly refused.
Charge A, requested by the defendant, Avas abstract, and properly refused, as there Avas no evidence tending *622to show that the intestate could not have heard the wdiistle.
The court erred in giving charge 6, at the request of the plaintiff, as it ignored the issue of subsequent contributory negligence, presented by the pleading and the evidence.
Charge 8, while it states a general proposition of law correctly, was misleading; but that could have been corrected by a countercharge in this case. Consequently, the court cannot be placed in error for giving it.
The judgment of the court is reversed, and the cause remanded.
Reversed and remanded.
All the Justices concur, except Dowdell, O. J., not sitting.