SOMERVILLE, J. —
The plaintiff sued the defendant for damage done to his motor truck by a collision with one' of defendant’s cars on First avenue, in Birmingham, and had a verdict and judgment for $100. If the jury believed plaintiff’s evidence, they might well have found, not only that defendant’s motorman .was guilty of simple negligence with respect to- the collision, but of wanton negligence as well. In view of the undisputed evidence shoiving actual damage, however, it can be said with perfect assurance that punitive damages were not allowed by the jury, and we might well disregard all questions relating to that subject.
(1, 2) Charge 8, refused to defendant, ignored plaintiff’s evidence tending to show- that plaintiff’s car had stopped and his driver was attempting to leave the track, and that another person on the truck was flagging the approaching car — all of which was visible to *67the motorman; and it is erroneous in omitting the necessary qualification: “Unless and until he saw that the truck could not or would not seasonably leave the track.”
(3) Charge 9, refused to defendant, predicated a verdict for defendant by reason of plaintiff’s contributory negligence, and ignores the issues of wantonness altogether. It was for this reason properly refused.
(4) Charge 10, refused to defendant, was doubtless a good charge, if restricted to the wanton count. It is too obvious for argument, however, that the motorman’s best efforts to stop the car after discovering the danger of collision is no bar to liability for not discovering the danger sooner. Whether he exercised due care in this regard was clearly for the jury, and the charge was properly refused.
Defendant’s eighth plea, setting up contributory negligence, was no answer to- the wanton count, and as to that count the demurrer was properly sustained.
(5) The collision occurred on First avenue, near Fiftieth street, where defendant’s track ivas imbedded in the street, so as to be a part of it. Counts 4, 5, and 6 correctly describe the locality of the collision; but counts 1, 2, and 3 describe it as occurring at a public crossing, viz., First avenue and Fifty-Fourth street. The trial judge refused to give for defendant the general affirmative charge, as requested in writing, on each of these counts 1, 2, and 3. It is insisted that this was reversible error, in view of the fact that all the evidence placed the collision near - Fiftieth street. The argument is that the rights and duties of the parties at public street crossings are materially different from what they are at other points along the track, and hence the question is more than one merely of venue.
*68If the complaint had contained only the first three counts,' it seems clear that defendant would have been entitled to the affirmative charges requested, and their refusal would have been prejudicial error; and it may, perhaps, be conceded that, even under the present complaint, the refusal of these charge would formerly have worked a reversal. — L. & N. R. R. Co. v. Perkins, 152 Ala. 133, 44 South. 602; Mansfield v. Morgan, 140 Ala. 574, 37 South. 393. But practice rule 45 (175 Ala. xxi, 61 South, ix) now inhibits reversals for the giving or refusal of special charges, unless upon the whole record it appears that the action complained of probably affected injuriously the substantial rights of the appellant. Here the only case tiled, and the only cause of action actually before the jury, was the collision near Fiftieth street. The issues of fact upon which this verdict was based would have been in no wise changed or affected by the giving of the charges requested, and it is not conceivable that their verdict would have been different if they had been given.
We must therefore decline to reverse the judgment for this action of the trial court. We are unable to declare that the trial court improperly refused to set aside the verdict under the evidence disclosed by the record. Let the judgment be affirmed.
Affirmed.
Anderson, C. J., and Mayfield and Thomas, JJ., concur.