what she was doing at the time; the fact that negligence at the time being matter of defense. she was misusing the street or was guilty of [Ed. Note.-For other cases, see Street Railroads, Dec. Dig. § 110.*] 4. PLEADING (§ 254*)-DEMURRER-REFILING -NECESSITY. debt in question, the testimony of Riley | time of the accident, without any averment of Roberts is more hostile than favorable to the interest of his father's estate, as it tends to increase, rather than lessen, the responsibility of said estate for the payment of the debt. His testimony goes to show that the land of Mrs. Hughes was not liable for said debt, and, if her land is not made answerable for same, the result increases the liability of his father's estate for said Sibert debt. [2] The mortgage on the wife's land, being given to secure the debt of her husband, was invalid. Section 4497 of the Code of 1907, and numerous cases there cited. We cannot put the trial court in error for failure to decree a foreclosure as to the other land, even if the mortgagors were estopped from denying that it belonged to the one, or the other, or both, for the reason that the bill does not attempt to deal with said land. It really charges ownership in only 20 acres (the S. 2 of the N. E. 4 of S. E. 4 of section 21), and by paragraph 3 sets up an adverse claim to only 40 acres, as claimed by Bellinger, and nowhere seeks relief or a foreclosure as to any other land and which said question was not considered by or brought to the attention of the city court. The decree of the city court is affirmed. Affirmed. All the Justices concur, except DOWDELL, C. J., not sitting. (174 Ala. 657) BIRMINGHAM RY., LIGHT & POWER CO. v. FOX. (Supreme Court of Alabama. June 29, 1911. Rehearing Denied Dec. 21, 1911.) 1. NEGLIGENCE (§ 111*)-COMPLAINT REQ UISITES. A complaint in an action for negligent personal injuries need not specify the particular acts of diligence omitted by defendant, but, when simple negligence constitutes the cause of action, plaintiff must bring himself within the protection of the negligence averred by alleging such a relationship as will enable him to recover for simple negligence. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 182-184; Dec. Dig. § 111.*] 2. STREET RAILROADS (§ 110*)-INJURIES TO PEDESTRIANS COMPLAINT REQUISITES. A complaint in an action for the death of a traveler struck by a street car, which alleges that defendant operated an electric car line along a street for the transportation of passengers, that the operators of a car negligently ran over decedent causing her death, sufficiently shows that decedent was rightfully on the track, and states a cause of action for negligence, since it shows that decedent and defendant had equal rights in the street; each owing the other the duty to avoid injury by the use of ordinary care. Where a demurrer is filed to a comwhether before or after a ruling on the deplaint, and thereafter the complaint is amended, murrer, demurrant, to have the benefit of the demurrer, must reinterpose it to the complaint as amended. Cent. Dig. 8 7532; Dec. Dig. § 254.*] [Ed. Note. For other cases, see Pleading, 5. PLEADING (§ 417*)-DEMURRER-RULINGSWAIVER. Under Code 1907, § 5370, providing that a party does not lose his right to assign error on a ruling against him by pleading over, a point taken by demurrer to a pleading, which is subsequently amended so as to eradicate the part objected to, or in an attempt to obviate the point taken, is waived by the demurrant, amended pleading and obtains a ruling thereon, unless he reinterposes his demurrer to the but where the amendment does not relate to the point taken by the demurrer, but to some other or different matter, the demurrant does not waive his right to review the ruling on the demurrer made before amendment, and this applies to an amendment to the complaint in an action against a street railway company consisting merely of a change of the names of the servants alleged to have negligently inflicted the injury complained of. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 1401; Dec. Dig. § 417.*] 6. STREET RAILROADS (§ 110*)-INJURIES TO PEDESTRIANS-COMPLAINT SUFFICIENCY. A complaint in an action against a street railroad company for the death of a traveler struck by a car, which merely alleges that a person named ran a car against decedent at a certain point on a designated street, where the company operated a street car line, and used cars for passengers, without averring that the car was on the company's line, is fatally bad for failing to connect the company with the wrong complained of. [Ed. Note.-For other cases, see Street Railroads, Dec. Dig. § 110.*] 7. PLEADING (§ 34*)-COMPLAINT CONSTRUC TION. A complaint on demurrer must be construed most strongly against the pleader. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 66; Dec. Dig. § 34.*] 8. STREET RAILROADS (§ 110*)-COLLISIONS— CONTRIBUTORY NEGLIGENCE-PLEADINGS. A plea in an action against a street railroad company for the death of a traveler struck by a car, which alleges that decedent was guilty of negligence proximately contributing to her death, that decedent went on or attempted to cross the track in front of and in dangerous proximity to the car, without looking for the car, is bad for failing to aver that decedent negligently attempted to cross the track in front of the approaching car. [Ed. Note.-For other cases, see Street Railroads, Dec. Dig. § 110.*] [Ed. Note. For other cases, see Street Rail-9. roads, Dec. Dig. § 110.*] 8. STREET RAILROADS (§ 110*)-INJURIES TO PEDESTRIANS-COMPLAINT REQUISITES. Such a complaint sufficiently shows that decedent was rightfully on the street at the EXCEPTIONS, BILL OF (§ 32*)—Power of JUDGE TO SIGN-STATUTES. The judge who tried a case may sign the bill of exceptions, though at the time, because of his illness, a special judge is sitting to try cases in his place, under Acts 1907, p. 255, which does not create a vacancy in the judge's term of office, but which is enacted in obedience to Const. 1901, § 161, authorizing the Legislature to provide for the holding of courts when the judge fails to attend. [Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. §§ 37-41, 71; Dec. Dig. 32; Judges. Cent. Dig. §§ 98, 103, 122, 144, 149, 157, 162.] 10. STREET RAILROADS (8 118*)-COLLISIONS CONTRIBUTORY NEGLIGENCE-INSTRUO TIONS. An instruction in an action for the death of a traveler struck by a street car that, if decedent attempted to cross the track in dangerous proximity to an approaching car, she was guilty of negligence, is properly refused because pretermitting knowledge of the approach of the car. [Ed. Note.-For other cases, see Street Railroads, Dec. Dig. § 118.*] 11. TRIAL ( 194*) — INSTRUCTIONS TIONS FOR JURY. QUES Where, in an action for the death of a pedestrian struck by a street car, the evidence showed that decedent was in imminent peril from the approach of a north-bound car, and was endeavoring to avoid that car, and that in a mad rush for safety she attempted to cross the next track on which she was struck by a south-bound car, and there was evidence of a stopping or slacking sign post at the point as well as a custom for cars to stop or slacken speed before passing each other, a charge that, if decedent attempted to cross the track in dangerous proximity to the car, she was guilty of negligence, was objectionable as abstract and misleading, it being for the jury to determine under the facts whether decedent was guilty of contributory negligence in attempting to cross the track in front of the approaching south-bound car. [Ed. Note. For other cases, see Trial, Dec. Dig. § 194.] 12. NEGLIGENCE (§ 72*)-CONTRIBUTORY NEGLIGENCE-ACTS IN EMERGENCIES. The rule that one who suddenly acts when unwarned peril surrounds him is not as a matter of law chargeable with contributory negligence for failure to exercise the care imposed on a prudent man under normal conditions cannot be invoked where one wrongfully and voluntarily puts himself in a dangerous position, and then attempts to escape from the danger. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 99, 100; Dec. Dig. § 72.*] 13. STREET RAILROADS (§ 118*)-INJURY TO PEDESTRIANS-INSTRUCTIONS. In an action for the death of a pedestrian struck by a street car, it is proper for the court on request to charge that one who walks on a street railway track must first look to see whether a car is approaching. [Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 118.*] 14. NEGLIGENCE (§ 97*)-CONTRIBUTORY NEGLIGENCE COMPARATIVE NEGLIGENCE. The doctrine of comparative negligence does not exist in Alabama; and where a plaintiff's negligence, though slight, is the proximate cause of injury, he cannot recover for the simple antecedent negligence of defendant. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 93, 162; Dec. Dig. § 97.*] 15. NELIGENCE (§ 117*)-CONTRIBUTORY NEGLIGENCE-PLEADING. Contributory negligence, to be available as a defense, must be specially pleaded, and it is only such negligence as is pleaded that can defeat a recovery. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 195-197; Dec. Dig. § 117.*] 16. TRIAL (§ 252*)—INSTRUCTIONS-ABSTRACT INSTRUCTIONS. Where, in an action for the death of a pedestrian struck by a street car, the motorman testified without dispute that he saw decedent while in the center of the parallel track, and before she came on his track, a charge that if a pedestrian is negligent in crossing a street railway track and such negligence proximately contributes to an injury by being struck by a car, he cannot recover on account of the mere failure of the motorman to keep a proper lookout for him, was properly refused because abstract. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*] 17. STREET RAILROADS (8 93*)-OperATION OF CARS CARE REQUIRED. ing on a street car track in front of an apThe negligence of a pedestrian in enterproaching car does not relieve the motorman of his obligation of sounding the gong after seeing the pedestrian on the track. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*] 18. STREET RAILROADS (§ 118*)-INJURIES_TO PEDESTRIAN-ACTION - MISLEADING STRUCTIONS. IN An instruction in an action for the death of a pedestrian struck by a street car that if decedent was guilty of negligence in attempting to cross the track, and such negligence proximately contributed, even in the slightest degree to her injury, plaintiff cannot recover for mere negligence of the motorman, is properly refused for failing to take into account any subsequent negligence, and thereby misleading the jury to believe that plaintiff cannot recover for subsequent negligence if decedent was guilty of negligence in attempting to cross the track. [Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 118.*] 19. TRIAL (§ 251*)-INSTRUCTIONS-PLEAD INGS. Where, in an action for the death of a pedestrian struck by a street car, there was no plea of contributory negligence on decedent's part subsequent to, or concurrent with, the negligence of the motorman alleged in the complaint, an instruction which pretermitted plaintiff's right to recover for subsequent negligence if decedent was guilty of the slightest negligence was properly refused. [Ed. Note. For other cases, see Trial, Dec. Dig. § 251.*] 20. TRIAL (§ 233*)-INSTRUCTIONS-FORM OF INSTRUCTIONS. Instructions should hypothesize the facts relied on as a defense, and not require the jury to examine the pleas to determine what is meant by the instructions. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 527-530; Dec. Dig. § 233.*] 21. STREET RAILROADS (§ 118*)—INJURIES_TO PEDESTRIAN ACTION MISLEADING IN STRUCTIONS. An instruction in an action for the death of a traveler struck by a street car that, if decedent was guilty of the slightest negligence proximately contributing to the accident, the jury may not award plaintiff any damages for any mere negligence of defendant or its serv ants, was properly refused, since the word "mere" cannot be construed to mean only initial negligence, but is broad enough to lead the jury to believe that plaintiff cannot recover for any sort of negligence on proof of contributory negligence. [Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 118.*] 22. TRIAL (§ 203*)-ISSUES-INSTRUCTIONS. Where plaintiff amended his complaint by striking out a count before the case was submitted to the jury, the refusal to give an affirmative charge as to the count stricken out was not erroneous. [Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 477-479; Dec. Dig. § 203.*] Appeal from City Court of Birmingham; Charles A. Senn, Judge. Action by Carl Fox, administrator of Lillie Newman, against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Re versed and remanded. The following counts of the complaint are referred to in the opinion: (1) "Plaintiff, who sues as administrator of the estate of Lillie Newman, deceased, claims of the defendant, a corporation, the sum of $30,000 as damages, for that, to wit, on the 21st of November, 1905, the defendant company was engaged in operating an electric car line in the city of Birmingham, and along Nineteenth street, between Sixth and Eighth Avenues North, in said city, and used cars drawn or propelled by electricity for the transportation of passengers upon said streets. Plaintiff avers that on, to wit, the 21st day of November, 1905, the servants, agents or employés of the defendant company, whose names are unknown to plaintiff, who had charge and control of a certain car of the defendant company, operating the same upon said Nineteenth street, did so negligently run and operate said car that the same ran over, upon, or against the deceased, then and there and thereby inflicting upon her injuries, bruises, and wounds, and then and there and thereby causing her death, which occurred on the 22d day of December, 1905." The second count is the same as the first, except that it is averred that one Gillespie, whose name is otherwise unknown to the plaintiff, was the agent, employé, or servant of the defendant who had charge and control of a certain car, etc. The third count is the same as the first count, down to and including the words "passengers upon said streets," where they first occur therein, and adds the following averment: "Plaintiff avers that on, to wit, the 21st day of November, 1905, the servant, agent, or employé of the defendant, whose name is unknown to the plaintiff, who was in charge or control of a certain street car or electric car upon said street, did wantonly and recklessly or intentionally cause the death of the deceased, by wantonly and recklessly or intentionally running said car over, upon, or against the deceased, then and there and thereby greatly injuring her about the head, body, and limbs, and then and there and thereby causing her death, which occurred on, to wit, the 22d day of December, 1905." (4) Same as 3, except that the servant in charge or control of the car is alleged to have been named Gillespie. The amendment to the count was to insert the name of Dykes, instead of Gillespie. Plea 7 is as follows: "Defendant, for further plea and answer to each count of plaintiff's complaint, separately and severally says that plaintiff's intestate was herself guilty of negligence which proximately contributed to her said alleged injuries and death, in this: Plaintiff's intestate, Lillie Newman, went upon or attempted to cross the railway track of the defendant in front of and in dangerous proximity to the defendant's said car, which was then and there approaching her on the said street, without looking for said car." Plea 8 is similar to 7, except that it alleges that plaintiff's intestate negligently attempted to cross the railway track of the defendant in front of and in dangerous proximity to the said car, which was then and there approaching her, without looking for | said car. The following charges were refused the defendant: (2) "The court charges the jury that, if you believe from the evidence that plaintiff's intestate attempted to cross the defendant's track in dangerous proximity to an approaching car, she was guilty of negligence." (3) "The court charges the jury that one who walks upon a street railway track must first look to see whether a car is approaching on the track." (5) "I charge you that if a pedestrian is negligent in crossing or attempting to cross a street railway track on a public highway, and such negligence proximately contributed in the slightest degree to an injury received by the pedestrian in being struck by a car on the said track, he cannot recover any damages on account of the mere failure of the motorman to keep a proper lookout for him, nor on account of the mere failure to sound the gong of said car." (6) "If the jury believe from the evidence that plaintiff's intestate was guilty of negligence in attempting to cross defendant's track, and that such negligence proximately contributed even in the slightest degree to her injury, then the plaintiff cannot recover on account of any mere negligence on the part of the motorman." (17) "The court charges the jury that if you believe from the evidence that the plaintiff's intestate negligently attempted to cross the defendant's track, and such negligence proximately contributed even in the slightest degree to the injuries received by her by being struck by defendant's car on such track, then the plaintiff in this case cannot recover any damages on account of the mere failure of the motorman to keep a proper lookout for the intestate, if you believe from the evidence there is such failure." (8) "If the jury believe from the evidence that the defendants' mo-, said street, and we must assume that the torman was guilty of negligence, if you also believe from the evidence that the plaintiff's intestate was also guilty of the slightest negligence such as is pleaded, and that such negligence proximately contributed to her injury, you must find for the defendant, unless you also believe from the evidence that plaintiff's intestate was either willfully, wantonly, or intentionally injured." (9) "If you believe from the evidence that plaintiff's intestate was guilty of the slightest negligence, such as is pleaded in this case, and that such negligence proximately contributed to her in. jury, then you cannot award plaintiff any damages for any mere negligence on the part of the defendant or its servants." Charge 11 was the affirmative charge as to the ninth count. It appears from the record that after the trial of this case, and before the signing of the bill of exceptions, the judge trying the case became ill and unable to try cases, and that the proper authorities had designated another to serve as judge pending his recovery and ability to again assume the duties of his office, and that the bill of exceptions was signed by the judge trying the case, after the appointment of such other judge to take his place upon the bench. Tillman, Bradley & Morrow and L. C. Leadbeater, for appellant. Allen & Bell, for appellee. track was the ordinary street car track, and so embodied in the street and connected therewith as to become a part of the highway. Such a street railway as was described in the case of Glass v. M. & C. R. R. Co., 94 Ala. 581, 10 South. 215, and which was there conceded to be a part of the highway, but unlike the track dealt with in said case. There the roadbed was an ordinary steam railroad track, forming no part of the highway, and the injury occurred upon a trestle crossing a ravine. The case of Birmingham R. R. v. Jones, 153 Ala. 157, 45 South. 177, while holding that the track there considered was not a part of the highway, the opinion expressly excepted "what was known as street railways" usually constructed in such a manner as to be incorporated in and become a part of the street. The count showing that the intestate was not a trespasser, the defendant owed her the duty of not negligently hurting her. [3] It is next insisted that the complaint does not show what the intestate was doing when injured, that she may have been in such a position as to deprive her of protection even upon a highway. Precision and nice pleading would doubtless suggest that the pleader should aver that the intestate was traveling the street, crossing over or going up and down it, or whether on foot or in a vehicle or upon a horse, yet these averments are not absolutely essential, as the ANDERSON, J. [1] While it has been re- count shows that she was not a trespasser, peatedly held that the complaint in cases but was, presumptively, rightfully upon the of this character need not define the quo street when run over by the defendant's modo, or specify the particular acts of dili-street car. If she was misusing the street, gence omitted, yet, when simple negligence constitutes the cause of action, it is incumbent upon the plaintiff to bring himself within the protection of the negligence averred by alleging such a relationship as would enable him to recover for simple negligence. L. & N. R. R. Co. v. Holland, 164 Ala. 73, 51 South. 365, 137 Am. St. Rep. 25; Gadsden R. R. v. Julian, 133 Ala. 373, 32 South. 135; Ensley v. Chewning, 93 Ala. 25, 9 South. 458. so as to make her position at the point when injured wrongful or improper, this would be matter of defense, as the complaint showed that she was not a trespasser and had a right to be where she was when injured, regardless of how she got there, and, if she was guilty of negligence as to the manner in which she conducted herself at the time, it was a matter of defense. Count 8 in the case of Anniston Electric & Gas Co. v. Elwell, 144 Ala. 317, 42 South. 45, did not show that the defendant's track was a street car line so as to be a part of the highway, and, unless it was, the plaintiff may have been a trespasser, under the Jones and Glass Cases, supra, notwithstanding the injury may have occurred upon the streets of Anniston. Nor did it appear from the complaint in the case of Ensley v. Chewning, 93 Ala. 25, 9 South. 458, that the plaintiff was not a trespasser, it does not give the place of the accident, or show that the defendant's track was a street car line on a [2] Count 1, however, in the case at bar, meets the requirements, and shows that the plaintiff's intestate was not a trespasser upon the defendant's track, and was in a position to invoke the negligence averred. She was rightfully upon a street in the city of Birmingham, and had as much right to be there as did the car of the defendant. Their rights were equal, and they were both rightfully upon said public highway. The intestate as a citizen or traveler and the defendant, while operating a car on its own track, was simply using the highway as such in one of the uncommon but modern ways of trav-street at the point where the plaintiff was inel, each one owing the other the duty to avoid a collision or injury by the use of ordinary care. The complaint sufficiently avers that the defendant was operating a car along or upon a street in the city of Birmingham jured. It appears from the record (page 30) that, after the court overruled the demurrers to the complaint, the plaintiff amended counts 2 and 4 by inserting the name "Dykes" in place of "Gillespie," and the de BIRMINGHAM RY., LIGHT & POWER CO. v. FOX [4] In the case of L. & N. R. R. Co. v. Woods, 105 Ala. 561, 17 South. 41, the opinion states: "When a demurrer or pleas are filed to a complaint, and the record shows a subsequent amendment of the complaint by adding additional counts or otherwise, the party desiring the benefit of the demurrer or pleas which were filed previous to the amendment against the count as amended should refile them." This is sound, and, to hold otherwise, courts would have to file for parties, demurrers, and pleas to a complaint in cases in which they did not see proper to do so themselves. A demurrer 1017 amended. As to when demurrers should [5] The statute (section 5370 of the Code to an original complaint should not by the court be made applicable to an amended complaint, unless the demurrant refiles it to said amended complaint. It must be noted, however, that the Woods Case, supra, does not hold that in order to get the benefit of the point, in ruling upon the demurrer or pleas to the count before amendment, they must be refiled after amendment, but simply holds that the original demurrer or plea to the complaint before amendment will not be considered as applicable to the complaint after amendment unless refiled. the case of Central of Ga. Ry. v. Ashley, In 160 Ala. 580, 49 South. 388, it is said: "When demurrers are filed to pleadings, and before action on the demurrers the pleadings are amended, in order to have the benefit of the demurrers, the same should be reinterposed to the pleadings after amendment." This ruling is sound; for, if the complaint is amended before rulings on the demurrers to the original complaint, there is no ruling on the demurrers and, unless they are refiled to the amended complaint, there is no demurrer to said complaint. We therefore hold that a demurrant or pleader cannot invoke a ruling on pleading as to a complaint to which said demurrer or plea is not interposed, and the court has no right to interpose them for him; but this is an entirely different proposition from a party's right to review a ruling on his plea or demurrer to the original complaint, and which was made before the amendment of same, and which was not reinterposed after the amendment. If he seeks a ruling as to the amended complaint, he should refile his plea or demurrer, but he does not have to refile them to the amended complaint in order to review the action on same to the original complaint, but which said ruling he is entitled to review upon appeal unless it appears that he has waived the same or got the benefit of same. |