of negligence in respect of the running of the train. Railroad Co. v. Jones, 83 Ala. 376, 3 South. Rep. 902. The other assumption involved in appellant's position in reference to this charge (No. 4) is equally without support. The fact that the train ran 300 yards with some of the cars off the rails and on the ties, and when presumably every effort was being made to stop it, is itself some evidence that a high rate of speed, amounting to negligence, especially when considered in connection with the condition of the track, was being maintained. 15. Charges 5, 6, 7, 8, 35, and 36 proceeded on the assump tion that the only injuries alleged in the case or in the several counts consisted in displacement of plaintiff's womb, and in an injury to the last vertebra of her spinal column. The assumption is gratuitous, as a reading of the complaint will demonstrate. These charges were well refused. 16. The matter of exemplary damages was before this court-as were many other points now again presented-on damages. the former appeal. We then said: "We discover Exemplary no error in the rulings of the trial court on the question of punitive damages. There was evidence in the case tending to show that the cross-ties or a considerable portion of them under the track at the point of the derailment of the car in which plaintiff was riding,-the wreck being the result of a broken rail,-were unsound', decayed,'rotten; that the rail which broke was an old rail, as were others along there; and that the defendant company was constantly repairing that old track with old rails.' With the weight or sufficiency of this evidence we have nothing to do. Whether or not its tendencies were entirely rebutted by other testimony is also beyond our inquiry. Those were questions for the jury. We are satisfied that it tended to show a condition of the track, not to know and remedy which was such gross negligence on the part of the company as implied recklessness and wantonness, such indifference to the probable consequences of its continued use, such disregard of the safety of passengers being transported over it, as is the equivalent of intentional wrong, or a willingness to inflict the injuries complained of. And if the jury found the facts to be in accordance with this tendency of the testimony, they were authorized to return a verdict for exemplary damages." The evidence in this record is substantially the same on this subject as that adduced on the former trial. The conclusion then reached we now reaffirm. What was then said, however, is open to criticism in that it authorized the conclusion that recklessness or wantonness could be predicated of the mere omission of a duty to know the condition of the track which the evidence tended to establish. That this was an inaccurate statement of the doctrine was attempted to be demonstrated by the present writer in the subsequent case of Georgia Pac. R. Co. v. Lee, (Ala.) 9 South Rep. 230, and the inaccuracy was specifically pointed out in the yet later case of Richmond & D. R. Co. v. Vance (Ala.), 9 South Rep. 574. That statement, however, was an abstraction. No result depended upon it there, and none depends on it here. As was reiterated in the case last cited, the condition of the rails and cross-ties, and the fact of old rails being used constantly to repair that old track, was sufficient to authorize an inference on the part of the jury that the defendant knew of this condition of things, and to impute to them such recklessness or wantonness as is the equivalent of conscious wrong doing in continuing to run trains over a track in such dangerous condition. So finding, the jury were further authorized to impose punitive damages. It follows that the several charges requested by the defendant below on the assumption or to the effect that there was no evidence in the case of recklessness or wantonness were properly refused. Alabama G. S. R. Co. v. Hill, 90 Ala. 71, 44 Am. & Eng. R. Cas. 441; Georgia Pac. R. Co. v. Lee, (Ala.) 9 South. Rep. 230; Richmond & D. R. Co. v. Vance, Id. 574 17. Charge No. 20, requested in this connection, is bad, in that its tendency is to limit the imposition of vindictive damages to cases in which there is an "entire want of care" on the part of the defendant in respect of maintenance of its track, if not also in postulating facts of some of which there is no evidence. Some degree of care may have been exercised in the maintenance of the track, and yet it have been consciously left in such condition as that to run trains over it would probably have resulted in disasters of the kind alleged here. Instruction singling out testimony. 18. The court is under no obligation to single out the testimony of one or more witnesses, and instruct the jury to reach certain conclusions if such testimony be believed. To do so has the tendency to give undue prominence to the evidence of the witnesses thus separately set before the jury, and to obscure and minimize other evidence bearing on the point. would have been the tendency of charge 21, requested by the defendant, with respect to the testimony of Drs. Gaston and Johnson; and its refusal may be justified on that ground. Salm v. State, 89 Ala. 56; Kennedy v. State, 85 Ala. 327 ; Fariss v. State, 85 Ala. 1. Such 19. In Calhoun v. Hannan, 87 Ala. 277, this court said: "The burden being on the plaintiff to show falsity of the affi Instruction in case of doubt. davit in respect to the ground alleged for the issuance of the attachment, he must reasonably satisfy the minds of the jury in this regard. Manifestly, if their as to finding minds are left in a state of confusion and uncertainty on this point, the plaintiff has failed to make out this very essential part of his case, and cannot recover." This case is relied on to support the exceptions reserved to the action of the trial court in refusing to give charges which asserted that if the jury were in doubt and uncertainty as to certain facts essential to plaintiff's case, they should find against her. The case is not authority to the point. The mind may be reasonably satisfied of a given fact, and yet not be certain of it, nor free from doubt in respect of it; but no mind can be said to be reasonably satisfied as to the existence of a particular fact which is in a state of confusion-the synonym, when applied to mental processes and conditions, of bewilderment and distraction-in respect thereto. These charges would have required a greater measure of proof than is necessary even in criminal cases, in that the conviction on the part of the jury would have had to be to the exclusion of doubt and uncertainty, whether reasonable or not. Harris v. Russell, (Ala.) 9 South. Rep. 541. 20. A number of other charges were requested by the defendant and refused. They have all received careful consideration. We shall not, however, further extend this opinion by a discussion of them in detail. Each of them will be found to be either unsound in the abstract, or argumentative, or misleading, or invasive of the province of the jury, or to assume the existence of evidence not found, or the non-existence of evidence which is found, in this record; and many of them are open to more than one of these objections. Similarly we pretermit discussion of three or four rulings on the evidence, because the objections to them are obviously lacking in merit. Every point made in the case has been considered (a great number of them, indeed, were passed on when the case was here before,) and all plausible exceptions have been written upon. We find no error in any ruling of the trial court, and the judgment is affirmed. Action for Personal Injuries-Physical Examination of Plaintiff.-See Union Pacific R. Co. v. Botsford, ante p. 406, note p. 414. Injury to Passenger Owing to Derailment Presumption of Negligence.See note, 44 Am. & Eng. R. Cas. 351. Exemplary Damages for Injuries to Passenger Caused by Defective Track. -See International G. N. R. Co. v. Brazzil (Tex.), 44 Am. & Eng. R. Cas. 437; Missouri Pac. R. Co. v. Shuford (Tex.), 37 Am. & Eng. R. Čas. 194; Ala. G. S. R. Co. v. Hill, (Ala.) 44 Am. & Eng. R. Cas. 441. In Richmond & D. R. Co. v. Vance (Ala. June 24, 1891,) 9 So. Rep. 574. it was held that the fact that the track where the accident occurred was theretofore defective and that defendant's officers and servants might have known it, does not render defendant liable for punitive damages, unless there was a probable consciousness on their part that such an accident would be the probable consequence of such defects. Nor are punitive damages allowable where the accident was due to the concurrence of a latent defect, not discoverable with the known defect, and where it could not have occurred without such latent defect. Admissibility of Evidence in Reference to Defective Track and Roadbed.— See Stewart v. Everts (Wis.), 44 Am. & Eng. R. Cas. 313, note 318 and cases there cited. In Jacksonville & S. E. R. Co. v. Southworth, (Ill. Nov. 1, 1890,) 25 N. E. Rep. 1093. it was held that where in an action by a passenger against a railroad company the negligence charged is the rapid running of the train over an imperfect track, it is competent to show the condition of the track over which the train had to pass to reach the point where the accident occurred. And where the defects in the track consist in faults of construction, evidence as to the condition of the track six months after the accident is admissible in connection with evidence showing that the track had remained substantially the same. In a North Carolina case, Grant v. Raleigh & G. R. Co. (N. Car. May 12, 1891) 13 S. E. Rep. 209, the injury for which the action was brought resulted from an accident at a switch. The court held that the exclusion of the question whether there was not a subsequent accident at the same switch, was harmless error, where another witness testified as to such accident. It was also held that evidence of the condition of the defendant's track at other places and of other switches in the same vicinity was inadmissible. In Alabama it is held that where the complaint only charges defendant railway company with negligently performing its duty to a passenger, whereby the car in which he was ran off the track and he was injured, evidence is admissible of defects in the track that may have caused_the_accident. Richmond & D. R. Co. v. Vance (Ala. June 24, 1891,) 9 So. Rep. 574. GLEESON ย. VIRGINIA MIDLAND R. Co. (140 United States, 435.) Injury to Passenger-Landslide-" Act of God"-Liability of Company.— A landslide in a cut through which a railroad passes, caused by an ordinary fall of rain, is not an "act of God" which will exempt the railroad company from liability for injury to passengers caused thereby. The failure of the railroad company to so construct the banks of its cuts that they will not slide by reason of the action of ordinary causes and to carefully inspect them, is negligence which entails liability for injuries to passengers caused by the banks giving way. Same Same-Presumption of Negligence-Burden of Proof. When a passenger on a railroad train is injured owing to a landslide, a presumption of negligence on the part of the company arises, and the burden is upon it to show that the slide was the result of causes beyond its control. 47 A. & E. R. Cas.-33 IN error to the Supreme Court of the District of Columbia. This is an action for damages, brought in the supreme court of the District of Columbia. It appears from the bill of exceptions that at the trial the evidence introduced by the plaintiff tended to show that in January, 1882, he was a railway postal clerk, in the service of the United States post of fice department; that on Sunday, the 15th of that month, in the discharge of his official duty, he was making the run from Washington to Danville, Va., in a postal car of the defendant, and over its road; that in the course of such run the train was in part derailed by a landslide which occurred in a railway cut, and the postal car in which the plaintiff was at work was thrown from the track upon the tender, killing the engineer and seriously injuring the fireman; and that the plaintiff, while thus engaged in performing his duty, was thrown violently forward by the force of the collision, striking against a stove and a letter box, three of his ribs being broken and his head on the left side contused, which injuries are claimed to have permanently impaired his physical strength, weakened his mind, and led to his dismissal from his office, because of his inability to discharge its duties. Defense was made by the company under these propositions: That the landslide was caused by a rain which had fallen a few hours previous, and therefore was the act of God; that it was a sudden slide, caused by the vibration of the train itself, and which, therefore, the company was not chargeable with, since it had, two hours before, ascertained that the track was clear; and that the injury resulted from the plaintiff's being thrown against the postal car's letter box, for which the company was not responsible, since he took the risk incident to his employment. At the close of the testimony, the court, having given to the jury certain instructions in accordance with the requests of the plaintiff, charged the jury, at defendant's request, as follows: "(1) The burden of proof is on the plaintiff to show that the defendant was negligent, and that its negligence caused the injury. (2) The jury are instructed that the plaintiff, when he took the position of a postal clerk on the railroad, assumed the risk and hazard attached to the position, and if, in the discharge of his duties as such, he was injured through the devices in and about the car in which he was riding, properly constructed for the purpose of transporting the mails, the railroad is not liable for such injury, unless the same were caused by the negligent conduct of the company or its employes. (3) The court instructs the jury that, while a large degree of caution is exacted generally from railway companies in order to avert accidents, the caution applies only to those accidents which |