M'cCLELLAN, C. J.
Section 3326 of the Code is as follows: “The court may state to the jury the law of the case, and may also state the evidence when the same is disputed, but shall not charge upon the effect of the testimony, unless required to do so by one of the parties.” In this case the court violated this statute by charging upon the effect of the testimony without being required to do so by either of the parties. The charge in question given ex mero motu was as follows: “After listening to the arguments yesterday, gentlemen, bv counsel for *258plaintiff and. for the defendant, and after carefully reading over the charges which have been asked for by both sides, I have come to the conclusion that in this case the plaintiff was guilty of contributory negligence as matter of law, and I would charge you that under the counts of the complaint which claim damages for simple negligence, that for the failure to perform its duty, the plaintiff cannot recover because he himself was guilty of contributory negligence. The evidence in this case shows the manner in which he approached this railroad track, it shows the location of this train that injured him. There is no evidence showing that he did look or listen. The law requires that a person should do both, for the simple reason there may be times when he cannot hear on account of other noises, but he may be able to see. And the evidence shows conclusively in this case that there was no obstruction in the way to prevent his seeing the approach of this train that ran over him. It is true there was a moving freight train, and he was near that; he may not have been able to hear the ringing of the hell when it was rung, but there is nothing in the evidence to show — in fact the evidence shows conclusively that there was no obstruction in the way to prevent his seeing the approach of that train if he had looked. It may be said there is no evidence that he didn’t lo'ok, but if he looked and saw it, and then didn’t get out of the way, that was such contributory negligence, as would disentitle him to recover under these counts. So I say that I have come to the conclusion and will charge you that the plaintiff in this case cannot recover under the counts which charge simple negligence on account of his own acts in putting himself where he was injured without taking the precaution that the law requires. In other words, that he was guilty o.f contributory negligence and cannot recover under those counts.” The giving of this charge unrequested on the effect of the testimony was error. From this error a presumption of injury arises. This presumption is not rebutted by the fact that at the request of the defendant the court subsequently gave: the affirmative charge with hypothesis *259against those counts of the complaint which claimed damages for simple negligence. The charge given ex ■mero motu was nob on the hypothesis of the jury’s believing the evidence at all, but it was an absolute instruction to find for the defendant on certain counts. The evidence was oral. Its credibility had to be submitted to the jury. Even had. the court given this charge at the request of the defendant, it would still have been erroneous for not submitting the truth of the testimony to the jury. Given in the terms it was, it absolutely required a finding for defendant though the jury might not have believed the testimony as to the intestate’s contributory negligence. The judgment must, therefore, be reversed for this error committed by the court, even though it be assumed that the1 testimony if believed by the jury showed without conflict that the intestate was guilty of negligence which proximately contributed to his death. Any other ruling would emasculate the statute. — Mayer v. Thompson-Hutchison Building Co., 116 Ala. 634; Gafford v. State, 125 Ala. 1; Cary v. Woodham, 103 Ala. 421; Postal Telegraph Co. v. Brantley, 107 Ala. 683; Crawford v. McLeod, 64 Ala. 240; Baker v. Russell, 41 Ala. 279; Moore v. Robinson, 62 Ala. 537.
We find no error in the rulings of the court on charges requested bearing on contributory negligence. Assuming the truth of the testimony, it showed that the intestate was guilty of negligence in going on the track where he was run over without looking and .listening for the approaching cars, that the employes of the defendant did not become aware of his peril in time to avoid injuring him, and were not guilty of negligence in not acquainting themselves with his position sooner, and that, therefore, his own negligence was the proximate contributing cause of the injury he suffered. If the jury believed the evidence, it necessarily follows, that their duty was to find for defendant under the counts of the complaint which charged negligence only against it.
As to the counts -which charged wantonness on the part of defendant’s employes it need only be said that if there was any testimony tending to support them— which we do not decide — it was that of one or two wit*260nesses who testified to the rapid movement of the train over the street at the crossing. There was much other . testimony to the effect that the speed of the train over tire crossing was at the rate of about four miles an hour. It seems clear to us that if the fact was in line with this testimony there was no room for the jury to find that defendants’ servants were guilty of wantonness, reckless indifference to probable or even- possible disastrous consequences in the operation of the engine and cars over the street at the time of the infliction of the injuries upon plaintiff’s intestate. This was the position taken by the trial court in passing upon charges requested.
A great many exceptions were reserved on the trial to rulings on the admissibility of testimony. It is, we think, not necessary to discuss or pass on these rulings in detail, since with all the testimony offered by plaintiff and rejected allowed to go to the jury and all the testimony admitted against plaintiff’s objections excluded, it would still be proper for the court to give the affirmative charge with hypothesis against .those counts of the complaint which claim damages for negligence on the part of defendant, and also'to give the same charges that were given with reference to the counts which claim for wantonness, and the case before the jury would not be materially different in any respect from what it is as presented in this record. But apart from this consider-ration, we find no error, certainly none prejudicial to the appellant in the rulings on the competency of testimony. '
There was no error in the rulings of the court on demurrers to the pleas.
Motion is made in this case to strike the bill of exceptions because it was not prepared in accordance with Rule 33, p. 1201. of the Code. In the preparation of this bill the rule has been violated under the same circumstances and in the same way as in the case of Woodward Iron Co. v. Herndon, 130 Ala. 364, 30 So. Rep. 370, and noon the. considerations there adverted to we adopt the course here that was adopted in that case: We decline *261to strike the bill of exceptions, but we impose its costs on the appellant.
Be versed and remanded; costs of bill of exceptions to be adjudged against appellant.