Kansas City, Memphis & Birmingham Railroad v. Crocker

| Ala. | Dec 15, 1891

Lead Opinion

’WALKEE, J.

No demurrer was interposed to the complaint. The defendant moved to arrest judgment on the verdict rendered by the jury. This motion was predicated upon the ground that the complaint did not show any cause of action, and would not support tbe judgment. Tbe motion was properly overruled, if tbe complaint contained a substantial cause of action. — Code of 1886, § 2835. In support of tbe motion it is urged, tbat tbe complaint does not allege a cause of action against tbe defendant as tbe employer of tbe plaintiff, unless tbe averments thereof sbow tbat tbe injury complained of was caused by reason of sucb negligence as is specified in subdivision 5 of section 2590 of tbe Code of 1886; and tbat, in imputing tbe injury to tbe negligence of a person in tbe service or employment of tbe defendant wbo bad charge or control of “a car propelled by band, called a lever-car,” tbe complaint does not sbow that sucb person bad charge or control of a “car” within tbe meaning of tbat word as used in tbe statute.

Sub-division 5' of section 2590 of the Code is in these words: “When sucb injury is caused by reason of tbe negligence of any person in tbe service or employment of tbe master or employer, wbo has tbe charge or control of any signal, points, locomotive, engine, switch, car, or train upon a railway.” In tbe corresponding sub-division of tbe original act, upon which this section of the Code is founded, tbe language is, “by reason of tbe negligence of any person in tbe service of tbe employer, wbo has tbe charge or control of any signal, switch, engine, or train upon a railway, or any part of tbe track thereof.” — Acts of' Ala. 1884-85, p. 115. It thus appears that tbe words “points,” “locomotive” and “car,” were introduced by tbe codifiers. A result of tbe change is to enable an employe to maintain an action against bis employer, for an injury caused by reason of tbe negligence of any person in tbe service or employment of tbe master or employer wbo has tbe charge or control of any car upon a railway. It is argued tbat, as tbe word “car” is used in connection with tbe words “locomotive,” “engine” and “train,” it was intended to mean a vehicle used on a railway for tbe transportation of passengers or freight, which is propelled by a locomotive or engine, and forms a part of a train. It is true, tbat in determining tbe true sense of a word which has a variety of meanings, regard should be had to tbe other words with which it is associated, and to tbe subject-matter in relation to which it is used. As tbe clause of the statute which is under consideration has reference to injuries received in railway service, it seems plain that the word “car,” as here used, does not include such vehicles moved on wheels as are not used on railways, though there are sucb vehicles which may properly be called cars. It is not difficult to select from tbe several definitions of tbe word “car,” as found in tbe dictionaries, one wbicb is applicable to tbe word as used in tbe statute. Tbe Century Dictionary gives tbis, among other definitions : “a vehicle running upon rails.” One of Webster’s definitions is : “a vehicle adapted to tbe rails of a railroad.” "We find nothing in tbe language of tbe statute to suggest that tbe word as there used was intended to convey a meaning wbicb excludes tbe idea of a band or lever-car. Such cars are used in tbe ordinary business of railroads. Employes who ride upon them, or who are in tbe discharge of duties on or near to tracks over wbicb they are propelled, are liable to be injured in consequence of tbe negligent handling of them. It is plain that subdivision 5 of tbe statute covers tbe case of an injury caused by reason of tbe negligence of a co-employe who has tbe charge or control of a car, though such car is at tbe time in no way connected with an engine, and is not a part of a train. Tbe negligent handling of a detached passenger or freight-car may cause an injury wbicb is actionable under tbe statute. It is not necessary that tbe car be connected in any way with a locomotive, or with other cars forming a train. íf tbe car is adapted to tbe rails of a railroad, and is used in tbe business of railroads, we think that it is none tbe less within tbe meaning of the word as used in tbe statute because it is made to be propelled by band. Tbe motion in arrest of judgment was properly overruled.

2. Tbe complaint attributes tbe injury complained of to tbe negligence of tbe foreman in applying tbe brake without warning while tbe car was being propelled at a rapid rate of speed, and thereby suddenly checking its speed and causing the plaintiff to be violently thrown off, in front of tbe moving car, so that it ran against and over him. Evidence tending to show tbe speed of tbe car was competent in support of tbe allegations of tbe complaint in that regard. On tbis subject tbe plaintiff stated: “I would think tbe lever-car was going at tbe rate of eight or ten miles an hour.” His counsel then asked him tbis question: “About bow fast, compared to a man running?” Tbe defendant’s objection to the question having been overruled, tbe witness answered: “Well, sir, it was running faster than a man could run.” Tbe defendant’s motion to exclude tbe answer was also overruled. It is often impossible for tbe appearance wbicb was presented by a moving object to be conveyed to tbe minds of tbe jury so clearly that they could form a satisfactory conclusion as to its velocity, without tbe aid of .the opinions of eye-witnesses. Conclusions upon such a question as tbe speed, of a moving vebicle are necessarily, in most instances, based 'upon tbe opinions of persons who observed it. Because no better evidence can ordinarily be obtained, or tbe facts can not otherwise be presented to tbe jury, tbe law admits tbe opinion of ordinary witnesses,- derived- from observation, as evidence on tbe question of tbe speed at wbiclr an object was moving at a certain time. Sucb opinions may often be no more definite tban tliat tbe object in question was moving at a greater or less rate of speed tban other familiar objects which tbe witness bad been accustomed to observe in motion. That tbe witness is unable to state that tbe object in question was moving at tbe rate of a certain number of miles in an hour would not necessarily render bis opinion useless as an aid to tbe jury. Assistance in coming to a conclusion on sucb a question may be derived from a statement that tbe object was going slowly, or at a snail’s pace, or no faster tban a man walks, or faster tban a man could run. Tbe opinions are admitted to enable tbe jury to realize, as far as possible, tbe impression as to speed made by tbe moving object upon tbe mind of one wbo saw it. It would be more satisfactory if tbe admissibility of sucb opinions could be made to depend upon their conformity to some definite standard of clearness or accuracy in their formation and expression. It is not practicable, however, to fix any sucb standard. Tbe vagueness of tbe opinion would only go to tbe weight of tbe testimony, and not to its admissibility. As tbe statement made by the plaintiff in answer to the question above referred to was admissible as tbe expression of bis opinion based upon observation, we do not think that opinion should have been excluded because it was not more definite; and as tbe question did not elicit incompetent evidence, no injury resulted to tbe defendant in consequence of its allowance. — Lawson on Opinion and Expert Evidence, pp. 460-462—465; Evansville & T. H. R. R. Co. v. Grist, 116 Ind. 446" court="Ind." date_filed="1889-01-03" href="https://app.midpage.ai/document/evansville--terre-haute-railroad-v-crist-7049536?utm_source=webapp" opinion_id="7049536">116 Ind. 446; s. c., 9 Amer. St. Rep. 865, and notes; Gugenhein v. Lake Shore & M. S. R. Co., 32 Am. & Eng. R. Cases, 89.

3. There was no evidence tending to show that any one on tbe lever-car beard an extra train coming, or that a train was in fact approaching from either direction when tbe brake was applied by the foreman. Tbe inquiry as to what tbe section-foreman and tbe section-bands should do with a lever-car on which they are riding, when they bear a train coming, could not tend to throw any light on tbe question of the foreman’s duty in tbe circumstances shown by the proof. It could only tend to divert the minds of the jury to lay before them evidence to show what would have been the duty of the men on the car under an imaginary state of circumstances, different from that developed by the- proof in the case on trial.. The objection to the question calling for such evidence was properly sustained.

4. The question in reference to the danger incurred by one who fails to hold on to anj'thing while standing on a moving lever-car called for evidence which, in connection with the other proof in the case, would have tended to show that the' plaintiff was negligent in that regard. Contributory negligence is in its nature defensive, and the burden of proof to show it is upon the party who relies upon it. The pleas interposed by the defendant in this case did not go beyond a traverse of the allegations of the complaint. If contributory negligence on the part of the plaintiff was relied upon as matter of defense, it should have been specially pleaded. A denial of the charge of negligence made against the defendant in no way involves the averment of negligence on the part of the plaintiff. The defendant’s pleas did not present any issue of contributory negligence.— Thompson v. Duncan, 76 Ala. 334" court="Ala." date_filed="1884-12-15" href="https://app.midpage.ai/document/thompson-v-duncan-6511994?utm_source=webapp" opinion_id="6511994">76 Ala. 334; Mobile & Montgomery Ry. Co. v. Crenshaw, 65 Ala. 566" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/mobile--montgomery-railway-co-v-crenshaw-6510679?utm_source=webapp" opinion_id="6510679">65 Ala. 566; Louisville & Nashville R. Co. v. Hall, 87 Ala. 708" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/louisville--nashville-railroad-v-hall-6513617?utm_source=webapp" opinion_id="6513617">87 Ala. 708; North Birmingham S. Ry. Co. v. Calderwood, 89 Ala. 247" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/north-birmingham-street-railway-co-v-calderwood-6513824?utm_source=webapp" opinion_id="6513824">89 Ala. 247; Beach on Contributory Negligence, § 157. It is proper to exclude evidence which is pertinent only to an issue which is not presented by the pleadings. For this reason, the objections to the questions as to the plaintiff’s negligence in letting go the handle of the lever-car were properly sustained.

5. The question propounded by the counsel for the defendant to the witness West on his direct examination, to which an objection was sustained, was so framed as to suggest the answer desired. The witness had just stated that he never ran on a curve without stopping to ascertain whether any trains were coming. To ash him, immediately after this statement, if it was his duty to make such a stop or not, was well calculated to indicate to him what answer was expected. The court was justified in sustaining the objection to the question, because of its leading character under the circumstances.

6. It is true that it is the duty of the jury to weigh the evidence, and not merely to count the witnesses introduced by the respective parties. We are unable to perceive how any injury could have resulted to tbe defendant from tbe giving of tbe charge to this effect.

7. It was shown without contradiction that, when tbe brake was applied, tbe plaintiff was standing in tbe front end of tbe car, facing in tbe direction from which tbe car was coming, and that be was assisting in working tbe handle of tbe lever on that end of tbe car; that in the position be was in there was nothing be could bold to but tbe handle of tbe lever. There was evidence tending to show that, when tbe lever-car was under good headway tbe men working tbe lever would at times turn it loose without bolding on to anything else; and that, on tbe occasion in question, tbe plaintiff in assisting to work tbe lever would let go tbe handle as be pushed it down. There was evidence to support a finding that West knew that tbe persons operating the band-car were at times in tbe habit of turning-loose tbe lever, when tbe car was running down grade. If with this knowledge, and at a place where they were not accustomed to stop, be applied tbe brake so as to check with unnecessary and dangerous suddenness tbe speed of tbe car when it was running down grade, without notice to tbe persons operating tbe same, and without looking to see that such persons were bolding to tbe lever, tbe inference of negligence from such conduct is clear and certain. Tbe sudden checking of tbe car without notice necessarily involved tbe danger of a fall to a person who was standing upon it without support. If the state of facts hypothesized in tbe second charge given at tbe request of tne plaintiff bad been submitted to tbe court as a special finding of tbe jury, tbe conclusion of negligence could have been pronounced as a matter of law. Tbe charge submitted tbe questions of fact for tbe determination of tbe jury from tbe evidence. There was no error in instructing them that, if they believed from tbe evidence that such was the state of facts, then tbe act of tbe foreman was negligent. — Louisville & Nashville R. Co. v. Perry, 87 Ala. 392" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/louisville--nashville-railroad-v-perry-6513555?utm_source=webapp" opinion_id="6513555">87 Ala. 392; East Tenn. Va. & Ga. R. Co. v. Bayliss, 74 Ala. 150" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/east-tenn-va--ga-railroad-v-bayliss-6511704?utm_source=webapp" opinion_id="6511704">74 Ala. 150; City Council of Montgomery v. Wright, 72 Ala. 411" court="Ala." date_filed="1882-12-15" href="https://app.midpage.ai/document/city-council-of-montgomery-v-wright-6511524?utm_source=webapp" opinion_id="6511524">72 Ala. 411.

8. As tbe defense of contributory negligence was not presented by tbe pleadings, no injury could have resulted to tbe defendant by tbe charge stating that “tbe court leaves it to tbe jury to say whether, under tbe evidence in this case, tbe plaintiff was guilty of contributory negligence.” This charge should have been refused; but the giving of it could work no injury to tbe defendant, as tbe effect was to allow tbe defendant tbe benefit of a defense which bad not been set up.

Charges 5, 7, 10, 11, 12,14,15, 16, 20, 22 and 23 requested b}r the defendant were instructions upon the question of the plaintiff’s contributory negligence. As that question was not presented by the pleadings, all of them were properly refused on that ground, without regard to other defects in several of them.

9. A proposition of the fourth charge requested by the defendant is, that if the jury can not say who has told the truth, then they must find the facts, so far as there is conflict, not proven in this case, and if such facts are necessary to be proved in order for plaintiff to recover, they must find for the defendant. A jury may not be satisfied that any one witness in the case has told the truth throughout his testimony, and yet they may be able, from a fair consideration of all the evidence before them, to arrive at a satisfactory conclusion in reference to the matter presented for their determination. They should not be instructed to make up an issue as to the testimony of each witness, and render a verdict as to its truth or falsity. In weighing all the evidence, it can not be said to be their duty to reject the entire testimony of a witness who has erred in some material particular. An untrue statement may be attributable to an honest mistake, and may be reconcilable with the absence of any intention to misrepresent the facts. If the jury can satisfactorily determine the issues of fact presented to them by weighing the evidence and sifting out the truth, their conclusion would not be vitiated because they could not say that the witnesses upon whose testimony their verdict is based have stated nothing but the truth of the matter as they have found it. The charge was properly refused.

10. Although there was no custom to give notice before applying the brake, yet it is plain that it might be applied to check the car in such a manner, and under such circumstances, that a failure to give notice would render the act negligent and unnecessarily perilous to other persons on the car. There was evidence tending to show that the foreman applied the brake so as to check the car very suddenly, while it was in rapid motion, and at a place where it was unusual to make a stop. It was for the jury to say from the evidence whether the brake was applied in such a manner as to render the act negligent. Charges 6, 8, 9, and 21 requested by the defendant were properly refused, because they assert, in effect, that the absence of a custom on the subject would preclude the imputation of negligence to the act of the foreman in applying the brake without notice under any circumstances. Though, the jury were in doubt and uncertainty as to whether plaintiff’s injury was caused by his having received no notice of the intended application of the brake, yet they would not be justified in finding for defendant if they believed from the evidence that the injury to the plaintiff was caused by the negligence of the foreman in checking the speed of the car suddenly and without warning, as alleged in the complaint. If the injury could properly be imputed to the negligence alleged, it was not necessary that the jury should be able to affirm that it was caused solely by the failure to give warning, which was but one feature of the negligence charged. This consideration discloses the incorrectness of charge 18 requested by the defendant. Charge 19 was misleading and confusing in singling out an isolated feature of the negligence alleged, and was calculated to convey the impression that the injury must be attributable solely to the want of notice. The two charges last mentioned ignore facts other than those hypothetically stated which there was evidence tending to prove, and the existence of which would avoid the legal conclusions respectively stated.— White v. Craft, 91 Ala. 139" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/white-v-craft--co-6514097?utm_source=webapp" opinion_id="6514097">91 Ala. 139.

As has been already indicated, there was evidence from which the jury would be authorized to find that the injury was caused by the checking of the car in an unusual ancl negligent way. Charge 13 requested by the defendant was properly refused, because it asserted that there was no such evidence.

The principal argument suggested in support of the correctness of charges 1, 2 and 3 requested by the defendant is the one which has already been considered and disposed of in the review of the action of the lower court in overruling the motion in arrest of judgment.

"We have discovered no reversible error in the record, and the judgment must be affirmed.

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Rehearing

(In response to application for re-hearing.)

WALKBB, J.

It is insisted in the application for a rehearing that the defense of contributory negligence could be made under the general issue. The scope of that plea is prescribed by the statute. It puts in issue “all the material allegations of the complaint.” — Code of 1886, § 2675. Of this statutory plea it was said in Petty v. Dill, 53 Ala. 645: “ It cast on the plaintiffs the onus of proving every material allegation of the complaint; it limited the defense to evidence in disproof of them. No matter in avoidance of the allegations of tbe complaint, or in excuse or justification of tbe wrongful act imputed to tbe defendant, was witbin tbe issue found. All sucb matters tbe statute required to be specially pleaded. ... If it was intended to confess and avoid, . , tbe matter of avoidance should bave been specially pleaded. Tbe general denial of tbe allegations of tbe complaint was not sufficient to put it in issue.” It is well settled, that any defense, special in its nature, or reaching beyond a mere denial of the material allegations of tbe complaint, is required by tbe statute to be presented by a special plea. — Howland v. Wallace, 81 Ala. 238" court="Ala." date_filed="1886-12-15" href="https://app.midpage.ai/document/howland-v-wallace-6512649?utm_source=webapp" opinion_id="6512649">81 Ala. 238; Daniel v. Hardwick, 88 Ala. 557" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/daniel-v-hardwick-6513750?utm_source=webapp" opinion_id="6513750">88 Ala. 557; Slaughter v. Swift, 67 Ala. 494" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/slaughter-v-doe-ex-dem-swift-murphy--co-6510909?utm_source=webapp" opinion_id="6510909">67 Ala. 494. Tbe question, then, is, does a statement of a cause of action based upon tbe charge that tbe defendant was negligent, involve the assertion that no negligence on tbe part of tbe plaintiff proximately contributed to tbe injury of which be complains, so that a mere denial of tbe allegations of tbe complaint casts tbe burden on tbe plaintiff to show that be was not guilty of contributory negligence? As shown in tbe opinion already delivered in this case, this court lias several times decided that contributory negligence is in its nature defensive, and that it is not incumbent on tbe plaintiff in tbe first instance to negative tbe 'defense either in bis pleading or in bis proof. Contributory negligence is none the less defensive because the proof of it is disclosed in tbe evidence which tbe plaintiff himself offers in support of tbe charge that tbe defendant was negligent. The ruling in North, Birmingham Street Railway Co. v. Calderwood, 89 Ala. 254, that tbe burden of proving contributory negligence is not on the defendant when it is shown by tbe evidence introduced by tbe plaintiff, has not been adhered to. Tbe rule on this subject which -we regard as correct is thus stated in a later case; “Tbe onns in this- regard is in all cases on tbe defendant, though plaintiff’s evidence sometimes relieves from tbe necessity of discharging it.” — Geo. Pac. Railway Co. v. Davis, 92 Ala. 312. Tbe defendant need not introduce evidence in support of a special plea, if tbe evidence introduced by tbe plaintiff has already established tbe defense. But tbe source from which tbe evidence to support a defense comes does not determine that it was not purely defensive matter, and available only under a special plea, or that tbe burden to prove it was not on tbe defendant. Tbe term “contributory negligence,” instead of implying sucb a denial of tbe material allegations of tbe complaint as is made by pleading tbe general issue, implies just tbe contrary. Tbe theory of this special defense is, that tbe defendant was negligent, but that the negligence of the plaintiff conduced to the injury complained of. The defense is in the nature of a confession and avoidance. It may be fully made out without denying a single allegation of the complaint. The pith of it is, that admitting that the defendant was negligent as charged, yet the plaintiff is not entitled to recover because his own negligence proximately contributed to the injury. The plea of contributory negligence, when standing by itself, admits the negligence charged in the complaint. — L. & N. R. R. Co. v. Hall, 87 Ala. 708" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/louisville--nashville-railroad-v-hall-6513617?utm_source=webapp" opinion_id="6513617">87 Ala. 708; Carter v. Chambers, 79 Ala. 229; Geo. Pac. Railway Co. v. Lee, 92 Ala. 270. Now, the very essence of the general issue is a denial of all the material allegations of the complaint. "When negligence is counted on, the fact of negligence is certainly denied by the general issue. The same words can not at once be a denial and an admission of the same thing. The statutory general issue does not palter in a double sense. It does not admit what it denies. True, it was said in Government St. R. R. Co. v. Hanlon, 53 Ala. 70" court="Ala." date_filed="1875-06-15" href="https://app.midpage.ai/document/government-street-r-r-v-hanlon-6509098?utm_source=webapp" opinion_id="6509098">53 Ala. 70, that the defense of contributory negligence was available under the general issue. The statement of this proposition was not necessary to the decision in that case. It is stated in the report that the record did not disclose upon what pleas the case had been tried. Such being the case, as it appeared that the defense of contributory negligence was considered without objection on the trial, it could have been presumed, in favor of the correctness of the rulings of the lower court, that the defense was presented by a special plea. — Brinson v. Edwards, 94 Ala. 447" court="Ala." date_filed="1891-11-15" href="https://app.midpage.ai/document/brinson-v-edwards-6514568?utm_source=webapp" opinion_id="6514568">94 Ala. 447. The proposition, however, that the defense of contributory negligence could have been availed of under the general issue, was simply asserted without discussion or argument, and the only authority cited in support of it was Steele v. Burkhardt, 104 Mass. 59" court="Mass." date_filed="1870-03-15" href="https://app.midpage.ai/document/steele-v-burkhardt-6416003?utm_source=webapp" opinion_id="6416003">104 Mass. 59. The ruling of the Massachusetts court in the case cited is put upon the ground that the plaintiff’s allegation that the injury happened in consequence of the negligence of the defendant implies that there was no negligence on the part of the plaintiff which contributed to the injury, and throws upon him the burden of proving that he was free from such negligence. It is now well settled in this State that no such implication is involved in the plaintiff’s allegation that the defendant’s negligence caused the injury, and the burden is not primarily on the plaintiff to negative fault on his part. During the sixteen years that have elapsed since the case above cited from 53 Ala. was decided, many phases of the defense of contributory negligence bave been passed on by this court. The proposition that tbat defense is available under the general issue has not been reaffirmed. This court has declined to reaffirm the proposition. — Montgomery & Eufaula R. Co. v. Chambers, 79 Ala. 342. In Rich. & Danv. R. Co. v. Hammond, 93 Ala. 181" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/richmond--danville-railroad-v-hammond-6514378?utm_source=webapp" opinion_id="6514378">93 Ala. 181, it was distinctly recognized, that the defense is .one requiring a special plea to support it. As the nature of the defense has been brought out in clearer light in the later decisions, its distinctive character as a special defense has been fully established. A defense which in its very nature concedes the truth of the charge against the defendant, but avoids the effect of the concession by making a counter charge against the plaintiff, can not reasonably or logically be availed of under a plea which limits the defendant to evidence in disproof of the charge made in the complaint. We adhere to the ruling that the defense of contributory negligence must be made by a special plea. On this point the case of Government St. R. R. Co. v. Hanlon, supra, must be overruled.

Our attention has been called to several cases in which the defense of contributory negligence was considered by this court, though only the general issue was pleaded. Pryor v. Louis. & Nash. R. R. Co., 90 Ala. 32" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/pryor-v-louisville--nashville-railroad-6513915?utm_source=webapp" opinion_id="6513915">90 Ala. 32: Hissong v. Rich. & Danv. R. R. Co., 91 Ala. 514" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/hissong-v-richmond--danville-railroad-6514171?utm_source=webapp" opinion_id="6514171">91 Ala. 514. In neither of those cases did the court notice the point. Nothing was said on the subject. Those cases are not authorities against a proposition which was not mentioned therein in any way. Former decisions are entitled to weight, under the doctrine of stare decisis, only when the proposition in support of which they are cited was considered and passed on.

The deiendant’s pleas, three in number, are set out in their proper place in the record. This court can not indulge the presumption that other pleas were filed, especially as the indulgence of such presumption would involve the imputation of error to the trial court. When the record fails to set out the pleas, but it appears that special defenses were considered by the trial court without objection, to avoid the imputation of error, it may be presumed that such defenses were supported by proper pleas. But when a complaint and pleas thereto are found in the record, there is no more room for a presumption that other and different pleas were interposed, than there would be for a presumption that allegations other than those which the record discloses were added to the complaint by amendment.

It is also insisted that the conduct of the plaintiff on the trial, as disclosed in the bill of exceptions, shows that he treated the defense of contributory negligence as duly presented, and that he can not now claim that it was not raised by the pleadings. Conceding that the issues could be enlarged by consent without proper pleading, notwithstanding the rule laid down in Burns v. Campbell, 71 Ala. 294; the question, then, is, does the conduct of the plaintiff show that he consented to treat the defense of contributory negligence as properly presented ? The evidence introduced by the plaintiff was confined to the support of the allegations of the complaint. It showed the position occupied by the plaintiff at the time of the accident, and the circumstances under which the foreman applied the brake. The defendant claimed that the plaintiff was negligent in not keeping hold of the lever while the hand-car was in motion, in not being prepared at all times for the stopping of the hand-car to let regular or extra trains pass, and in not anticipating that the brake might be applied at any time without warning. All the evidence to show that it was safer to hold on to something while the car was in motion, or that it was the duty of those on the car to be prepared at all times for the passage of trains, or that it was not usual to give notice of the application of the brake, was called out by the defendant. The plaintiff did not start either of these inquiries. The bill of exceptions shows that the plaintiff objected to evidence which was jMoperly excluded because the issue of contributory negligence was not presented. Of course, no exception of the plaintiff, which was not sustained, is shown in the defendant’s bill of exceptions. If the plaintiff objected to all the evidence offered by the defendant and admitted on the question of contributory negligence, the defendant’s bill of exceptions would not show that such objection was made. There is nothing in it to show that the plaintiff did not object to any of the evidence admitted against him. It is not to be inferred that the plaintiff did not object because his objections do not appear in the defendant’s bill of exceptions, where it is not to be supposed that they would be noted if they were unavailing. The plaintiff did offer evidence in rebuttal of the evidence introduced by the defendant on the- question of contributory negligence. This did not show that he waived the irrelevancy of the defendant’s evidence on this subject. It is not error to permit the rebuttal of illegal evidence with illegal evidence. — Gibson v. The State, 91 Ala. 64" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/gibson-v-state-6514081?utm_source=webapp" opinion_id="6514081">91 Ala. 64. There is nothing in the introduction of evidence to show that the plaintiff consented to treat the defense of contributory negligence as properly pleaded.

It is further insisted that tbe action of the plaintiff in requesting a charge on the subject implies such consent. When the court permits the defendant to make a defense not presented by his pleas, the plaintiff may as effectually protect himself on the trial against this erroneous action of the court by showing the insufficiency of the evidence to support the defense, as by relying, in the appellate court, on the error of the trial court in treating such defense as properly presented. A claim by the plaintiff that the evidence does not support the defense, and his request for a charge to the jury in reference to the evidence on the subject, is not inconsistent with a contention on his part that there is no plea to support such defense, and does not involve a concession or agreement that such defense has been duly pleaded. We do not think that the action of the plaintiff in requesting charge No. 3, given at his instance, shows that he consented to treat the defense of contributory negligence as properly raised.

In the application for a re-hearing it is contended for the first time the plaintiff was not entitled to recover on the second count of the complaint, unless the evidence showed such recklessness on the part of the defendant, its agents or servants, as would avoid the defense of contributory negligence; and that there was no evidence tending to show such recklessness. On the strength of this proposition it is claimed that the general affirmative charge in favor of the defendant as to the second count of the complaint should have been given as requested. The count, in describing the manner in which the brake was applied by the foreman, charges that it was done “negligently, carelessly and recklessly.” The question presented is, does the mere fact that the act is stated to have been reckless put upon the plaintiff the burden of making out such case that his own contributory negligence would not stand in his way of right to recovery ? It has been decided in several cases that a charge that the act complained of was willful, or that it was knowingly done, can not be supported by evidence of mere negligence, not involving willfulness or knowledge of the danger. — L. & N. R. R. Co. v. Johnston, 79 Ala. 436" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/louisville--nashville-railroad-v-johnston-6512411?utm_source=webapp" opinion_id="6512411">79 Ala. 436; L. & N. R. R. Co. v. Coulton, 86 Ala. 129" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/louisville--nashville-railroad-v-coulton-6513343?utm_source=webapp" opinion_id="6513343">86 Ala. 129; Birmingham Min. R. R. Co. v. Jacobs, 92 Ala. 192; Highland Ave. & B. R. Co. v. Winn, 93 Ala. 306" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/highland-avenue--belt-railroad-v-winn-6514407?utm_source=webapp" opinion_id="6514407">93 Ala. 306. And it has been held that a plea of contributory negligence to a complaint charging a willful infliction of injury by the defendant is bad on demurrer.' — A. G. S. R. R. Co. v. Frazier, 93 Ala. 45" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/ala-great-southern-railroad-v-frazier-6514344?utm_source=webapp" opinion_id="6514344">93 Ala. 45. The word loillful imports that the act to which it refers is done inten--fcionally, purposely. This is not necessarily so with the word reckless. The latter word has a wide range of meaning. In its milder sense it may imply mere inattention to duty— thoughtlessness — indifference, carelessness, negligence; or import a heedless disregard of obvious consequences. Webster’s Int. Diet.

In Harrison v. The State, 37 Ala. 154" court="Ala." date_filed="1861-01-15" href="https://app.midpage.ai/document/harrison-v-state-6506857?utm_source=webapp" opinion_id="6506857">37 Ala. 154, the distinction was drawn between the words tuillful and recldess, as employed in reference to criminal acts. It was there said, “The word willful, when employed in penal enactments, has not always the same meaning. In this statute, it is used as the synonym of intentional, or designed — pursuant to intention ox design; without lawful excuse. . . . The word recldess means ‘heedless, careless, rash, indifferent to consequences.’ Now, one may be heedless, rash, or indifferent to results, without contemplating or intending these consequences. As a general rule, there is a wide difference between intentional acts and those results which are the consequence of carelessness,” The same distinction was recognized in a late case. — Johnston v. State, 92 Ala. 82" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/johnson-v-state-6514224?utm_source=webapp" opinion_id="6514224">92 Ala. 82. The distinction is not obliterated when the two words are used in characterizing civil torts instead of crimes. Now, the degree of recklessness which will avoid the defense of contributory negligence is such as implies a willingness or a purpose to inflict the injury complained of — a consciousness that the unwarranted conduct will inevitably or probably lead to wrong and injury.— Ga. Pac. R. Co. v. Lee, 92 Ala. 262" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/ga-pacific-railway-co-v-lee-6514256?utm_source=webapp" opinion_id="6514256">92 Ala. 262. In charging recklessness in general terms, no more is necessarily implied than such mere negligence, thoughtlessness or inadvertence as could not be regarded as the equivalent of intentional wrong, and which, therefore, would be insufficient to overcome the defense of contributory negligence. A plea of contributory negligence can not be regarded as presenting no defense, because recklessness is charged in the complaint, unless it appears from the averments of the complaint that the recklessness charged amounted to more than mere negligence. There is nothing in the averments of the second count of the complaint in this case to show that the word was used in its harsher sense. There was evidence tending to show that the act of the foreman in applying the brake was reckless within the milder meaning of that word as above defined. The averments of the complaint by no means necessarily import that the objectionable act of the foreman was willful.

It is much to be regretted if the defendant has, in consequence of an erroneous statement in a former opinion delivered by tbis court, lost any of tbe benefits of a defense wbicb was supposed to be presented by pleading tbe general issue. But since tbe date of tbe decision in wbicb that statement was made, tbis court bas several times so clearly marked tbe scope of tbe statutory plea of tbe general issue, and bas also so fully discussed tbe characteristics of tbe defense of contributory negligence, that it is plain, in view of sucb later adjudications, that tbat defense must be presented by a special plea. We know of no rule tbat would authorize a reversal of tbe case in order to afford tbe defendant an opportunity to file additional pleas. In considering tbe refusal of the trial court to rule as requested by tbe defendant, we can look only to the case as found in the record. We discover no error therein of injury to tbe appellant. Tbe application for a rehearing must be denied.