for injuries resulting therefrom. A compliance with the statute and municipal ordinances in this respect is intended for the protection of the public and not the employés of the railroad company: Central of Georgia Ry. Co. v. Martin, 138 Ala. 531, 36 South. 426; Lewis v. Southern R. R., 143 Ala. 133, 38 South. 1023; Louisville etc. Co. v. Markee, 103 Ala. 160, 49 Am. St. Rep. 21, 15 South. 511. Count 2 showed that the intestate was an employé, and the running of the train in violation of the town ordinance was not the breach of a duty owing him, and the demurrer to this count should have been sustained.

While a complaint need not define the quo modo, or specify the particular acts of diligence omitted, yet when simple negligence constitutes the cause of action, so 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: Gadsden R. R. Co. v. Julian, 133 Ala. 371, 32 South. 135; Ensley R. R. Co. v. Chewning, 93 Ala. 24, 9 South. 458. Count 6 was bad, in that it did not show that the intestate was entitled to redress for simple negligence. Counsel for the appellee concedes that this defect in the count would be fatal, under the previous decisions of this court, but contends that, inasmuch as section 5476 (Code of 1907) changes the burden of proof, the complaint was sufficient in averring that the intestate was killed in the town of Athens, a place covered by section 5473 of the Code of 1907. This statute (section 5476) was construed in the case of Southern R. R. v. Smith, 163 Ala. 174, 50 South. 390, and it was there held that, as to persons, the burden of proof was not upon the railroad unless the accident or killing was at a place covered by the three preceding sections. Whether this section applies to this intestate or not, as to the burden of proof, it was not intended to change the degree of negligence or the obligation that a railroad owed to a trespasser. In other words, whether the place of the killing cast the burden on the railroad or not of showing no negligence, it did not mean to render the obligations to trespassers any greater or to permit them to recover for any lesser degree of negligence than they could have done previous to the adoption of the statute.

While it may have been the duty of the engineer to keep a lookout at the point named, it cannot be said that the defendant was liable to the intestate for his failure to keep a lookout for trains himself and flag them. The demurrer should have been sustained to count 7.

81 Count 11 charges simple negligence, and also avers that the intestate went to sleep on the track. If he was not in the discharge of his duty, but went to sleep on the track, as charged in the complaint, he was guilty of contributory negli

gence, and was, in effect, a trespasser, and the defendant owed him no duty other than not to run over him after discovering his peril. The count was subject to the demurrer interposed thereto Savannah & Western R. R. v. Meadors, 95 Ala. 137, 10 South. 141; Gadsden R. R. Co. v. Julian, 133 Ala. 371, 32 South. 135. We are not unmindful of the rule that subsequent negligence can be shown, under a count which avers negligence generally, and after the defendant has shown contributory negligence; but the counts in those cases did not aver that the plaintiff was guilty of contributory negligence, and the question was raised on the evidence or by charge. The demurrer confesses only the averments of the complaint, and which must be construed most strongly against the pleader, and when a complaint shows on its face that the plaintiff was guilty of contributory negligence or was a trespasser, then it is defective, unless it goes further and avers negligence subsequent to a discovery of his peril.

As this case must be reversed upon the pleading, and as many of the charges, made a basis of assignments of error, relate to counts held defective, we will content ourselves with only such a discussion of the remaining questions as may afford a guide upon the next trial, in disposing of what we consider the chief issue in the case.

Under the undisputed evidence, the intestate was guilty of contributory negligence such as to preclude a recovery for any anterior or initiative negligence of the defendant's servants. The undisputed evidence shows that the intestate went to sleep on the track, and there 82 was no evidence, or reasonable inference deducible therefrom, that he was sick or became suddenly stricken, so as to bring him within the influence of the case of Helton v. Alabama Mid. R. R., 97 Ala. 275, 12 South. 276. All of the witnesses who saw intestate just before he was killed testify that he was asleep. One witness left him a few minutes before and saw nothing the matter with him. It was admitted that he was in good health, and, indeed, counts 11 and 13 aver that he fell asleep. Therefore, the only theory upon which the plaintiff would be entitled to recover is that negligence, subsequent to a discovery of the intestate's peril, was the proximate cause of his death; that is, that the engineer not only discovered him, but discovered him in a perilous position, and negligently omitted to discharge some duty, which, if discharged, would have saved the intestate. The proof showed that Holland was so situated on the track as to impress the observer that he was in a perilous position. Douglass, the engineer, testifies that he was within less than two hundred feet (about one hundred and twenty-five or one hundred and fifty feet) when he discovered him, and that he did all things to arouse him and to stop the train. The undisputed evidence also

shows that this particular train, at the rate of speed it was going, could not have been stopped within the distance as given by the engineer, between him and the intestate when he first saw him, and if it was true that the engineer was not farther from the intestate when he first saw him than he said he was, he was not guilty of proximate, subsequent negligence, as the evidence acquits him of any negligence for failing to blow whistle. On the other hand, the plaintiff offered evidence tending to show that the engineer discovered the intestate in time to have stopped the train before it struck him. Miss "Bettie Sue Griffin" testified that the train first blew for the station at the cattle gap; that 83 later it blew sharp louder blasts; "that right at IIatchett's barn, which is on the east side of the track, . . . the train commenced to give sharp loud blasts of the whistle, blowing for Mr. Holland; it started blowing at Hatchett's barn and blew until it got to him." There was evidence that the distance from Hatchett's barn to where Holland was struck was four hundred and thirty-five and one-half feet, and there was also evidence that this train could have been stopped within that distance. It was therefore for the jury to determine whether or not the engineer discovered Holland in a perilous position; that is, a position that would impress the reasonable mind with the idea that he would not or could not get off the track in time to have stopped the train before striking him, and negligently failed to do so.

It is also insisted by appellant's counsel that the defendant was entitled to the general charge as to count 1 on account of a variance; that the count avers that the intestate was killed while in the discharge of his duty, and the proof does not establish this averment. This count does not aver that the intestate was actually engaged in the discharge of his duty at the time he was struck, and the averment is unlike the one considered in the case of Alabama G. S. R. R. v. McWhorter, 156 Ala. 269, 47 South. 84. The complaint in said case averred that the intestate was engaged in the discharge of his duty, flagging one of the defendant's trains, when he was struck, and the proof showed that he was not flagging a train when he was struck, but had stuck his flag in the ground and had gone down the track.

For the errors designated, the judgment of the circuit court is reversed and the cause is remanded.

Dowdell, C. J., and Sayre and Evans, JJ., concur.

A Railroad Company Ordinarily Owes No Duty to a Trespasser until his peril is discovered, and is not liable to him, unless after discovering his peril it could with proper care avoid injury: Louisville etc. R. R. Co. v. McNary, 128 Ky. 408, 129 Am. St. Rep. 308; Nashville etc. Ry. Co. v. Harris, 142 Ala. 249, 110 Am. St. Rep. 29; Becker v. Louisville etc. R. R. Co., 110 Ky. 474, 96 Am. St. Rep. 459.

As to the Duty and Liability of a Railway Company to Persons Asleep on its tracks, see Lloyd v. Albemarle etc. R. R. Co., 118 N. C. 1010, 54 Am. St. Rep. 764; Krenzer v. Pittsburg etc. Ry. Co., 151 Ind. 587, 68 Am. St. Rep. 252; Marshall v. St. Louis etc. Ry. Co., 78 Ark. 213, 115 Am. St. Rep. 27.

A Statutory Requirement That Railroad Companies shall keep a constant lookout for persons on their tracks has been held to apply to tracks within their yards as well as elsewhere, and to be for the benefit of their employés as well as others: St. Louis S. W. Ry. Co. v. Graham, 83 Ark. 61, 119 Am. St. Rep. 112.

WHITMORE v. ALABAMA CONSOLIDATED COAL AND IRON COMPANY.

[164 Ala. 125, 51 South. 397.]

MASTER AND SERVANT-Safe Place.-A Complaint in an action for injury to an employé from a defect in the ways, works or plant is subject to demurrer if it does not specify the defect relied upon. (p. 33.)

MASTER AND SERVANT-Statute for Protection of Miners. Code, section 1019, is intended only for the protection of employés engaged at a mine. And a complaint, relying on a failure to keep the supplies specified therein, which merely avers that the plaintiff's intestate was working in the mine, without showing that he was an employé, is subject to demurrer. (p. 33.)

DEATH-Survival of Action for Suffering.-An action for causing pain and suffering does not survive to the administrator under Code, sections 2486 and 3912, and counts in a complaint by an administrator which do not aver that the acts or omissions caused the death of his intestate, but that they merely aggravated or intensified his suffering, are subject to demurrer.

(p. 33.)

MASTER AND SERVANT-Duty to Maintain Safe Place.A master is under the duty of using ordinary care to furnish his employés with place, ways and appliances reasonably safe for use, but this duty may be discharged by committing its performance to agents carefully selected for competency and fitness. (p. 34.)

MASTER AND SERVANT-Duty to Maintain Safe Mine.Where a mine was reasonably safe when an employé started to work, but a defect arose subsequently and after the control of the mine had been delegated to an agent, recovery cannot be had for the death of an employé for failure to furnish a reasonably safe place. (p. 34.)

MASTER AND SERVANT.-The Placing of Caps of Dynamite in a Mine is not negligence as a matter of law, and recovery cannot be had for the death of an employé resulting from an explosion thereof, in the absence of evidence that they were negligently placed where they were. (p. 34.)

APPEAL-Harmless Error.-If the Plaintiff Fails to establish his complaint, an error in overruling his demurrers to the defendant's pleas is without injury. (p. 34.)

Action by George Whitmore, as administrator, against the Alabama Consolidated Coal and Iron Company, for the death

of his intestate. From a judgment for the defendant, the plaintiff appeals. The following is the complaint:

(1) "Plaintiff claims of defendant the sum of twenty-five thousand dollars damages, to wit, that on and prior to the fifth day of June, 1908, the defendant was engaged in operating an iron mine in Gadsden, Etowah county, Alabama, and that on and before the date aforesaid plaintiff's intestate was in the employment of defendant, and while in the discharge of his duties under his employment a stick of dynamite, dynamite caps, or other explosive exploded, so badly injuring him that on the next day he died as the result of said injury. And plaintiff avers that said injuries and death of plaintiff's intestate were proximately caused by the negligence of defendant in failing to provide him with a reasonably safe place in which to do his work under his employment."

(2) Like 1, down to and including the words "negligence of defendant," then adding: "In placing or allowing dynamite, dynamite caps, or other explosives to be and remain in such close proximity to plaintiff's intestate's place at which he was at work under his employment as to render the same unsafe in which to do his work."

(3) Like 1, down to and including the words "proximately caused," then adding: "By reason of defect in the condition of the ways, works, machinery, or plant connected with or used in said business of defendant, which said defect arose from," etc., according to the usual form.

(4) Same as 1, except that it is alleged that intestate was at work in said mine by invitation, and the defendant failed to provide a safe place to work, etc., under such invitation.

(5) Same as 1, except that negligence is alleged in failing to provide at the mouth of the mine a stretcher properly constructed, a woolen and waterproof blanket, and a failure to keep at the store of said mine linseed oil, or olive oil, bandages, and linen.

(6) Same as 5, except that the failure to keep blankets and stretchers is not alleged.

(7) Same as 5, except that the negligence is alleged in a failure to keep bandages at the mine.

(8) Alleges a failure to keep oil and bandages and linen at said store, and by reason thereof the wounds could not be bandaged and oil applied thereto until some time afterward, and after the intestate had been moved a long distance, whereby his injuries were approximately greatly increased. (9) Same as 8.

George D. Motley and W. F. Standifer, for the appellant. Hood & Murphree, for the appellee.

128 ANDERSON, J. Count 3 of the complaint failed to specify the defect in the ways, works or plant, and was sub