96 So. 915
Ala.
1923
SOMERVILLE, J.

We have examined the testimony in the record with studious care, and our conclusion, in accord with the ruling of the trial court, is that there was nothing from which the jury could rationally find that any member of the train crew operating the train that killed the intestate had knowledge at any time that, he was on the track in front of the backing train, and in peril from its movement; from which it results that the jury were properly instructed that-they could not find for tile plaintiff on the subsequent negligence count. It is conceded that the first three counts for simple original negligence were not supported by the evidence, and the only questions for review are those which relate to the issues arising under the fifth count, for wanton injury.

[1] Under the wanton injury count, the only theory on which the evidence could support a recovery was that the people of Epes and of the neighboring territory habitually used the railroad track in question, for longitudinal passage, in such numbers and with such frequency — that fact being known to defendant’s servants who were operating this freight train — as that the trainmen were charged with notice that some one would probably be on the track in an exposed situation, and would probably be injured by the operation of an engine, or train, or the running of cars, on the track, unless reasonable precautions were taken to prevent such a result, and a failure to take such precautions.

This theory of liability is well settled in this state, and has been applied in a great many cases. So. Ry. Co. v. Stewart, 179 Ala. 304, 60 South. 927, and cases therein cited: North. Ala. Ry. Co. v. Guttery, 189 Ala. 604, 66 South. 580; L. & N. R. R. Co. v. Heidtmueller, 206 Ala. 29, 89 South. 191; B. R., L. & P. Co. V. Saxon, 179 Ala. 136, 154, 59 South. 584.

When the required conditions are shown to have existed, it is, of course, a question for the jury whether the circumstances of the particular case establish the charge of wanton injury.

[2] The facts which are pertinent for consideration are the density of the neighboring population; the general custom of using the track as a passageway; the number of people who use it; and the frequency and notoriety of such use. It is, however, not permissible to show that on special occasions, or at hours other than about the hour at which the injury occurred, great or unusual numbers of people have used, or habitually use, the track for special purposes. L. & N. R. R. Co. v. Heidtmueller, 206 Ala. 29, 89 South. 191, 193.

The evidence 'in this case was, we think, sufficient to bring the locus of the injury complained of within the purview of the rule of liability above stated; and it was therefore within the province of the jury to find that a duty rested on the defendant company to observe some appropriate precaution or precautions in the operation of its trains at the point of injury, in order to avoid it; the omission of one or all of which might stamp the conduct of the responsible trainman as wanton negligence, and the proximately resulting, injury as wanton injury.

The precautions which the circumstances may thus require — the factors which may, in the jury’s estimation, render the trainmen’s mode of operating the train a just foundation for the conclusion of wanton injury— are the running of the train at such a speed as to permit of its effective control in case some one is discovered on the track in dangerous proximity, and to permit the endangered person to escape when warned of his danger; the giving of warning signals of approach; and the keeping of a lookout for observation, and seasonable warning, or checking or stopping the train. The omission of all of these measures in a given case might very well indicate a wanton disregard *572 of human life; while, an the other hand, observance of a single one of them might, notwithstanding its inadequacy, satisfactorily rebut that conclusion.

So, the . location of the track, the greater density of the surrounding population, and the more constant use of'the track by larger numbers of people — all of which is known to the trainmen — might bring the omission, of any one of those precautions within the field of wanton negligence.

Under the circumstances here shown, it is difficult to see how a wanton disregard of human life could be imputed to the operators of this train if it was backing at a speed of only 3 or 4 miles an hour, though without signals of approach or adequate lookout, since the tragedy which occurred was undoubtedly due to the chance circumstance of a passing train on the main' line, diverting the victim’s attention, and interfering with his sense of hearing.

These are all matters of evidence for the consideration of the .jury, but the ultimate inquiry is always the same: Do the facts of the case satisfactorily show that some person would probably be on the track at any given time; that his probable presence there is known to the responsible trainmen; and that, with such knowledge in mind, they intentionally, not inadverténtly, omit a precaution which any reasonable man must understand will probably result in injury to any person on the track in front of the advancing train?

While the trainmen’s knowledge of such conditions may be implied from the fact that they have had sufficient opportunities to observe and understand them (M. & C. R. R. Co. v. Martin, 117 Ala. 367, 385, 23 South. 231; So. Ry. Co. v. Stewart, supra), it is ob-, vious that resident observers will see much more than itinerant trainmen; and that a free use of the track by the public, though comparatively constant, may be apparent to a regular observer, and yet escape, in large measure, the ordinary observation of trainmen. All this is, pf course, for the consideration of the jury.

Many witnesses were examined on this subject, and many exceptions .were reserved by plaintiff to rulings excluding questions and answers. Some of these rulings were clearly erroneous, but the bill of exceptions shows that the testimony of the witnesses was sufficiently full and comprehensive to render those rulings harmless.

[3] As the plaintiff’s right to recover, if at all, was limited to the wanton count, the exclusion of the town ordinance of Bpes, limiting the speed of trains within the corporate limits to 6 miles an hour, was without prejudice to plaintiff, since it was relevant to the issue of initial negligence only. C. of G. Ry. Co. v. Blackmon, 169 Ala. 304, 313, 53 South. 805.

[4] Our view of the evidence, as limiting the issue to the question of wanton negligence based on the trainmen’s imputed notice of the intestate’s probable presence on the track, perhaps renders unnecessary any consideration of questions relating to the pleas-of contributory negligence. It is, however;, pertinent to observe that plea 8 was manifestly bad as an answer to the fourth or subsequent negligence count, in that it wholly fails to allege that the intestate was- con-? scious, or became conscious, of his peril from-the backing train, in time to avoid the injury. The’mere continuation of his original negligence — walking on a track which was: perilous in general, and known to him to be-so- — does not meet the requirement’that he-must have become conscious of his immediate-peril, and thereafter have negligently failed to extricate himself. L. & N. R. Co. v. Brown, 121 Ala. 227, 25 South. 609; B. R., L. & P. Co. v. Ætna, etc., Co., 184 Ala. 601, 607, 64 South. 44; C. of G. Ry. Co. v. Blackmon, 169 Ala. 304, 53 South. 805. A consciousness off that general danger which is incident- to an exposed situation is not the equivalent of a consciousness of the particular and immediate peril which results in injury; and this latter alone is the consciousness which, followed by the victim’s negligent failure to conserve his safety, will suffice to defeat a recovery. The demurrer to this plea pointed out this defect, and should have been sustained. Plea 7 was bad for the same reason, as an answer to count 4.

[5] It was not competent for plaintiff to show that the conductor of this train “made a running switch down there that day,” and’ such evidence was properly excluded. It-certainly had no bearing upon any of the issues in the case.

[6,7] It was competent for plaintiff to show what were the duties of the brakemen. or flagmen, Sims and Manderson, who were stationed on top of the backing train; that is to say, their duties as employes of the railroad company, not their duties, as a matter-of law, to a trespasser on the track. Tho (question as to their duties was, however, ambiguously framed so as to indicate either class of duties, equally, and for that reason-it was not error' to exclude it.

[8] Several of the written charges (B, O, D, and E), given to the jury at the instance-of defendant, require as a condition to liability for wanton injury, a finding that “the-person or persons in charge or control of said train on said occasion, or one of them, knew at said time that the place where the intestate-was struck, had been constantly, frequently, and regularly used by a considerable number-of people at or about that hour of the day.”

Appellant’s criticism of these charges is-that they require too much; the idea being that the word “constantly” imports an uninterrupted and continuous presence of such*. *573 persons on the track, so that at no moment of time would it he vacant of pedestrians. Lexicographers do not give to the word so strict a meaning, but define it, in applications like this, as meaning regularly or frequently recurring: long continuing; steadily. No doubt it is sometimes used in the sense of unintermittently — that is, literally, without any interruption; but that is not its ordinary meaning. We do not think that the use of the word in this instance made the charges bad, and its misleading tendency, if any, could have been corrected by explanatory instructions.

[9] Another group of charges (V and HH) instructed the jury that wanton injury, as here charged, is the legal equivalent of an intentional injury; that is, of intentionally killing or injuring some person on that occasion, or of intentionally allowing him to be killed. This, of course, does not mean that there must have been an actual intention to kill. Charges like these have been held as not erroneous, though possibly misleading, in Vessel v. S. A. L. Ry. Co., 182 Ala. 589, 62 South. 180, citing the cases which support the proposition stated. In the instant case, the general instructions given to the jury could have left no doubt in their minds as to the true elements of wanton injury.

[10,11] Given charge 15 asserts that “the plaintiff’s intestate was a trespasser on the track of the defendant, and that no duty rested upon the defendant, or its employes, to keep a lookout for him to discover whether or not he was on the track.” This is, of course, the general rule as to trespassers, but it has been qualified in its application to special conditions. S. & W. R. R. Co. v. Meadors, 95 Ala. 137, 10 South. 141; A. G. S. R. Co. v. Guest, Adm’r, 136 Ala. 348, 34 South. 968; So. Ry. Co. v. Stewart, 179 Ala. 304, 309, 60 South. 927. Under these and other decisions, it was a question for the jury whether or not, under the circumstances of this case, there was a duty on the part of the trainmen to keep a lookout for trespassers at this point. The charge in question invaded the province of the jury, 'and was erroneously given. Haley v. Kas. City, etc., R. R. Co., 113 Ala. 640, 652, 21 South. 357.

[12] For the same reasons, charges 31, 32, and 33, denying defendant’s duty to blow the whistle or ring the bell when backing the train, were erroneous, and should have been refused. This duty, if it exists under such circumstances, is not one imposed by the statute (Code, § 5473), but because it is, or may be, necessary to conserve the safety, from death or serious injury, of those who are in peril. S. & W., R. R. Co. v. Meadors, 95 Ala. 137, 143, 10 South. 141.

Given charge 16 denies liability for wanton negligence unless defendant or its employes “actually knew' the peril of deceased in time to have avoided injuring him.” Under the principles above stated, this charge was manifestly erroneous, and should have been refused.

[13] Given charge 101A instructed the jury to “take into consideration the fact that the deceased was guilty of negligence that proximately contributed to his death, in determining whether the material allegations of the fifth count of the complaint have been established.” This, in effect, left the matter of contributory negligence, as a defense to the wanton count, to the discretion of the jury, and was contrary to the settled law on this subject. The giving of this charge was error.

Given charge 17, ¡requiring proof that defendant’s employés “actually knew that the deceased was in peril, or likely to be in peril, in time to have avoided the accident,” etc., though correct as applied to the issue of subsequent negligence, was not applicable to the issue of wanton negligence as above explained, since it required actual knowledge of the presence of the deceased, as a definite personality, whereas it was necessary only that the trainmen should have known that some one would likely be in peril.

Charge^ M invaded the province of the jury, since, as pointed out, the backing of the train, under the circumstances shown, without signals (if that phase of the evidence were believed), and without lookout on the caboose, could support an inference of wantonness, weak though it might be.

[14] Charge 24 that, if the deceased “was walking along the defendant’s railroad track at the time, * * * and this conduct was the sole and proximate cause of his death, your verdict must be for the defendant” — was erroneous and should have been refused. Its effect was to make the initial negligence of the deceased a bar to recovery for wanton negligence. Renfroe v. Collins & Co., 201 Ala. 489, 492, 78 South. 395.

[15] Charge J, that the fact “that as many as 40 persons used the defendant’s track at or near the place, * * * between 11 a. m. and 1 p. m., each day, for a long period of time prior to the time * * * intestate was killed, would not be sufficient to charge the person or persons in charge of the train on that occasion, with notice that some one would likely be at that point at the time * * * intestate was killed”— is, we think, a clear invasion of the province of the jury, and should have been refused. It is true the charge was explained to the jury at some length, but the explanation was hardly consistent with the instruction.

[16] Such charges as the one numbered 100, that “if the deceased met his death as the result of an accident, solely, your verdict must be for the defendant” — are calculated *574 to confuse tlie jury, and had better be refused.

The New Standard Dictionary defines “accident’' as “any unpleasant or unfortunate occurrence causing injury, loss, suffering, or death.” • While the word may signify an unexpected occurrence for which no cause is assignable, its meaning, in both literary and popular usage, is much broader than that.

Quite a number of other special instructions were given at the instance of defendant. They are too numerous for detailed consideration, and what has been already said should suffice as a' guide to the trial court on the next trial.

Eor the errors noted, the judgment will be reversed and the cause remanded.

Reversed and remanded.

ANDERSON, O. J., and McOLELLAN and THOMAS, JJ., concur.