(1) Count 9 is a wanton count and was not subject to tbe defendant’s demurrer thereto, and, this being tbe case, tbe defendant’s special pleas 2, 3, and 4, of contributory negligence, were no answer to same, and tbe trial court did not err in sustaining plaintiff’s demurrer to said pleas. There was proof from which tbe jury could infer that tbe point at which tbe body of the intestate was found upon tbe defendant’s track No. 1 was constantly and frequently used by the public at all times, of tbe day, and especially late in tbe afternoon, about tbe time of tbe arrival of tbe train, and about tbe time of tbe accident in question, and that this user was of such frequency and duration that tbe servants of tbe defendant in charge and control of its train were conscious of such user and were conscious of tbe fact that to back, push, *172or drive a car upon the side track or main line anywhere between the tipple and washer, without signal or warning, would likely or probably result in injury to persons who would probably be on the track or tracks of the defendant. There was also- proof that the coach or caboose was driven further down said track No. 1 suddenly and without signal or warning. There was also proof from which the jury could infer that the intestate was run over or against by the coach or caboose in question when being driven down said track No-. 1. Of course, the intestate must have been upon the track and killed while on same in order to fasten a liability upon the defendant even under the wanton count, as it would not be liable if the deceased came by his death by falling or being thrown from the train or a car of the defendant, as the only wanton negligence inferable to the defendant’s servants was in driving the coach down the track without signal or warning with a consciousness that some one would probably be injured, as there is nothing to- indicate that the action of said servants could or would probably result in injury to a person on one of defendant’s cars at the time or who was not upon the track. The evidence is by no means clear or certain as to where the deceased was when killed, whether he was on the track; yet there was an inference for the jury that he was on the track when struck by the car, and, if such was the case, the jury could also infer that said servants o-f the defendant were guilty of wanton negligence. It may be true that the weight of the evidence showing that the track or track were frequently and constantly used by the public is confined to a point at or near the tipple, and all along between the tipple and the washer, and that side track No. 1, not extending, to the washer, and the point on *173same where intestate was killed, the user of the defendant’s track did- not extend to and include that point at side track No. 1 where the injury occurred; yet there was some evidence that all of said tracks, including side track No. 1, were constantly and frequently used.
(2 It was therefore for the jury to determine whether or not the intestate was on the track when run over, or did not fall off of the train, and whether or not the defendant’s servants were guilty of wanton negligence which proximately resulted in his death.
(3, 4) The general charge, however, should have been given for the defendant as to count 9, for the reason that- the plaintiff did not prove the averment of his complaint that the intestate was killed while crossing the defendant’s track.' True, this was not a necessary averment under the wanton count, as it made no difference whether he was or was not a trespasser as to this count; but as the complaint put the defendant upon notice that it killed the intestate while crossing the track and not as a trespasser, it was necessary to prove this averment. — A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84.
(5, 6) We are, of course, aware of the rule that if there is a conflict in the evidence, or if there is a reasonable inference of a fact which would make the question one for the determination of the jury, the general charge should not be given; but the evidence in this case has received a most careful and thoughtful consideration, and we fail to find any fact or facts which would create a reasonable inference that the intestate was crossing the track or was not a trespasser when killed. The fact that he was crossing said track is the merest conjecture or speculation which does not amount to a reasonable inference. It may be true that Joe Ray*174ners said it was his understanding that Fred was following him, that he thought it was Fred or Trav, one but his testimony shows that he did not know whether he was following him or not and that he never saw him after he (witness) got off the coach. The evidence of Trav Hinson not only fails to afford an inference that the intestate was crossing the track when killed, but negatives all idea that the said intestate was following Joe Rayners when the latter said he thought Fred or Trav, one, was following him.
(7) It has long been settled by the decisions of this court that, when the plaintiff sues a railroad for injuries and relies upon simple negligence, it is incumbent upon him to aver and prove a relationship that would render the defendant liable for simple negligence; that is, that he was not a trespasser. — L. & N. R. R. Co. v. Holland, 164 Ala. 73, 51 South. 365, 137 Am. St. Rep. 25; Gadsden R. R. Co. v. Julian, 133 Ala. 373, 32 South. 135.
(8) Nor does section 5476 of the Code of 1907 change this mile or- place the burden of proof upon the railroad of acquitting itself of negligence for injuring trespassers upon its track. It need acquit itself only of negligence for which it would be answerable to the injured party, but need not acquit itself of negligence of which the injured party cannot complain or for which he was not in a position to recover. — L. & N. R. R. Co. v. Holland, supra; Ex parte Southern R. R., 181 Ala. 486, 61 South. 881; L. & N. R. R. Co. v. Jones, 68 South. 871. Nor does the case of Ledbetter v. St. Louis R. R. Co., 184 Ala. 457, 63 South. 987, conflict in the slightest with this rule, as that case holds that it was only the duty of the defendant to acquit itself of negligence for which it was answerable to the injured party, and it seems that *175the intestate was killed at a crossing and not as a trespasser. Indeed, counsel for the plaintiff seem to have recognized this rule in framing the simple negligence counts in the case at bar, by averring that the intestate was killed while crossing the track, and was not therefore a trespasser, and this averment and proof of same was essential in the simple negligence counts, and, as the plaintiff utterly failed to prove said averment or to create a reasonble inference from which the jury could find that the intestate was killed while crossing the defendant’s track, the trial court erred in refusing the general charge, requested by the defendant, as to the simple negligence counts.
(9) There were no facts which authorized the submission of the case to the jury upon the theory that the defendant’s servants, or any of them, were guilty of subsequent negligence. True, there is proof that one of the trainmen knew that the boys were in or upon one of the defendant’s cars that night, but this was not notice to the trainmen that they or either of them would be in peril or liable to be run upon when they drove the car down siding No. 1. So far as they knew, the boys were in a position, when seen, where they would not be struck by the moving train.
The judgment of the circuit court is reversed, and the cause is remanded.
