#### Tennessee Coal, Iron *&*Railroad Co. *v.*Hansford.

*Action against a Railroad, Company to recover Damages for alleged Xegligence of Plaintiff’s Intestate.*

1. *Negligence; right to cross railroad trade.-*— While a person has a right to cross over the railroad track whenever he may have occasion to do so still before attempting to cross he must stop, look, and if necessary, listen for approaching trains; and if, after having thus assured himself that the way is clear, while attempting to exercise the right of crossing the track when it is dark, he is injured by the negligence of the employes of the railroad company in failing to give the signals of warning as required by the statute, or in failing to have a headlight upon the engine, as it approached the place where he crossed, the railroad company is liable for ¡the injuries inflicted.

2. *Same; same; fact that party injured on a railroad was employed by defendant in another branch of its service immaterial.*— In an action to recover damages for injuries resulting in the death of plaintiff’s intestate, which occurred upon a railroad track at night time, where the negligence charged was that the employés of the defendant in charge of the locomotive which ran over the intestate gave no signals of approach and did not have the headlight on the engine lighted, the fact that the deceased, who was on the track of the defendant at the time of the injury, was employed by the defendant in another branch of its services, separate and distinct from the operation of the railroad was immaterial and imposed no greater duty upon the defendant at the time and place mentioned, than that due to any other person on the track, whether exercising the legal right of crossing it or as a trespasser.

.3. *Same; same; when person a trespasser.*— While a person has a right to cross over a railroad track wherever he has occasion to do so, he has no right to linger upon ,the track or walk along the same, or upon the right of way of the defendant in dangerous proximity to the track; and upon doing so, he became a trespasser, and is not entitled to recover damages for personal injuries inflicted upon him while so trespassing upon the track, although the defendant may have been guilty of *350negligence in failing to give warning of approach, or in failing to have the headlight burning, if the accident was at night.

4. *Same; same; same.*— Where a person approaches a railroad track for the purpose of crossing over it, his duty to stop and look and listen must he performed while the person is so near the track and so immediately preceding his effort to cross -over the track as to remove any danger from a train coming upon the tracks between the time he stopped, looked and listened and his attempting to proceed across the track; and though he stopped at the track, if he lingers there, after looking and listening, until the train, not in hearing when he stopped, looked and -listened, has, in the mean time, come upon the scene and collides with him when he does attempt to cross, he is guilty of contributory negligence.

5. *Same; same.*— Where one who is about to cross over a railroad track sees a train approaching and misjudges its speed or is not able to cross before the train reaches the point of crossing; but makes an attempt and is struck and injured, he is guilty of negligence, which precludes his recovery for any negligence on the part of the railroad company or its employes, unless its agents were wanting in due care to conserve the safety of such person after they became aware of his peril.

6. *Pleading and practice; sufficiency of judgment on*demurrer.— To constitute a sufficient judgment on demurrer there should be a formal entry of the submission on demurrers and the specified pleadings, a recital of the consideration thereof by the court and formai adjudgment such as “It is therefore considered and adjudged by the court that the demurrers be and they are hereby” overruled or sustained, as the case may be; and a judgment entry which merely recites that the defendant’s demurrers were overruled or sustained, is not sufficient as a judgment upon such demurrers and will not be reviewed on appeal.

7. *Action against a railroad company for negligence; admissibility of evidence.*— In an action against a railroad company to recover damages for the killing *oí the*plaintiff’s intestate who was attempting to cross the defendant’s track when it was dark, where the charge of negligence is predicated upon the failure of the defendant’s agents or employés in control of the engine to ring the hell or sound the whistle, and in the failure to have the headlight on the engine burning on its approach to the place of the accident, and it is further alleged that people were in the habit of crossing the railroad track where the accident occurred, evidence tending to show the number of people who crossed the track at the point of injury, the time *351at which they crossed and whether there was a headlight, burning on the engine, or whether the bell was rung or the whistle was blown at the time of the injury, and whether the: witness who testified to such facts had an opportunity of seeing and hearing, is relevant and admissible.

8. *Same; same.*— In such a ease, the custom of the defendants in reference to lighting the headlight on the engine is immaterial to any question involved, the question being as to whether there was a headlight burning on the particular occasion inquired about; and evidence relating'.o such custom is irrelevant and inadmissible.

9. *Same; same.*— In such a case, evidence tending to show that the-engine in question had no pilot or cow-catcher on it is wholly irrelevant and immaterial, there being no negligence charged, in the complaint involving such inquiry.

Appeal from the City Court of Birmingham.

Tried before the Hon. W. W. Wilkekson.

This action was brought by M. F. Hansford, as administratrix of Tlios. Hansford, deceased, against the: Tennessee Coal, Iron & Railroad Company, to recover damages for the alleged negligent killing of the plaintiff’s intestate.

The complaint as amended contained twelve counts. The court gave the general affirmative charge in favor-of the defendant on each of the counts except the seventh. The averments of the seventh count are sufficiently stated in the opinion. The defendant demurred to the seventh count, but it is unnecessary to set out these demurrers, the minute entry of the court not being sufficient to present them for review on the present appeal. The said minute entry, relating to the demurrers, after referring to the complaint 'being amended, recites as follows: “'Whereupon the demurrers to the complaint are by the court heard and overruled.”

To the seventh count of the complaint there were filed the plea of the general issue and five special pleas setting up the 'contributory negligence of the plaintiff’s-intestate.

The plaintiff’s intestate at the time of his death was in the employment of the appellant at its furnaces at Ensley, Ala. He worked at the boilers of appellant. He-*352was killed, while on his-way home from work at 5:30 p. m. He lived'across the railroad tracks a mile or more, and had to cross the railroad tracks to get from Ms place of work to where he lived. At the time of his death the section crew of defendant was engaged in taking the tools and rails from their push car in front of or near the tool house, and the engine of 'appellant, Which was engaged in the work of removing the hot and molten cinders from, the furnaces to the cinder dumps, had just emptied the cinder pots at the cinder dump, and was returning to the furnaces. The testimony of some of the witnesses for plaintiff tended to show that there was a- path from the furnaces across the railroad tracks at the point where the tool house is located, which was considerably traveled by employés of defendant at its furnaces in going' to and returning from work, and that the travel over this path was principally in the morning and about 5:30 in the evening.. The testimony of the plaintiff also tended to show that it was about dark when the accident happened. The testimony fails to show that the decedent was seen until he got to the tool house and to the tracks which passed in front of the tool house. One witness testifies that he ,saw him step up on the track at the side of the tool house towards the cinder dump. Other witnesses saw him standing on the side of the track or between the side track and the main line at short intervals before the accident happened. Plaintiff’s first witness, Dode Bloc-ton, testified that he first saw decedent after the train had struck him and dragged him along, and as he was about to go under the wheelsthat he did not see him when he was first struck, and had not seen him at all until after he had been struck and carried along by the engine; that when he first saw'him after he was struck, lie was in front of the tool house being carried along by the engine; that when he first saw him he was right about where the path crosses the railroad, but at that time he had already 'been struck and was being carried under.

Plaintiff’s next witness, Will Black, testified that decedent was 20 feet from the path on the track at ■ *353the time he was struck; that the path was on the side of the tool house nearest to the cinder dump; that when witness first saw him (decedent) he was stepping on the railroad track right in front of the tool house; when witness next saw him he was 30 feet further down the track from the tool house; witness had not seen him between these times. Witness saw him on the railroad track in front of the tool house, and next saw him 30 feet further down the railroad track towards the dump, and four minutes elapsed between the two times witness saw him.

Plaintiff’s next witness, Nelson Goree, testified that he was unloading the tools off the -car and had not been paying any attention to Hansford, the deceased; saw him standing -between the two tracks when witness was unloading tools for two or three'minutes, and then saw him struck- The decedent was -standing still between ■the side track and the main line, clear of all trains. He was nearer the side track than the main line, and as near as witness -could state, was within 3-£ feet from the main line. That deceased was just above the tool house in the path when witness first saw him, and then in a few minutes after he was struck, and witness did not -see him any more in the meantime, nor until -after he was run over. He did not see him at all when the train struck him nor when the train was carrying him on; did not see him until after he was killed.

These were plaintiff’s only eye-witnes-ses to the accident.

Defendant’s witness Mandy testified, that he was about 100 yards above the tool house in front o'f the engine that ran over Hansford at the time -he was killed. Witness was between the first and second switches that led into the furnace from the main line. He first saw the engine -after it left the dump; saw it before it got to the tool house. Did not see Hansfo'rd killed and didn’t know about it until it was all -over. From where Avitness was standing' he -could see a quarter of -a mile up the track •toAvards the tool house, as near as he could remember. Saw the section gang and saw them get off the track. That was all he saw on the track. Did not see anybody *354get on the track. Did not see him (Hansford) struck, did1 not see him get on the track, and did not see him ‘at all. Witness looked down the track as the section gang got off the track, and never looked any more 'after that until the engine came ’along right by the side of witness. Witness saw the 'section boss get off just before the train passed by, just half a minute before — “not that long, 1 expect— just a few seconds. I don’t know .whether Mr. Hansford was on the track when the section foreman got off or not. If he had got on there and stayed on there I think I would have seen him. I don’t know whether he was on or not.”

Defendant’s witness; Sam Johnson, testified: “I was working in the defendant’s section gang when Hansford was killed, and saw him killed. When I saw him he was standing in the middle of the track. I saw him when the engine hit him, and had seem him before the engine hit him for five or six minutes. During that time he was standing on the track. He spoke to Mr. Perdue while he was standing there, and told him to come on and go home with him. Mr. Perdue told him all right he would go as soon as he got through with what he was doing. He was on the track facing Mr. Perdue, and in the same place he was when he was killed, when he spoke to Mr. Per-due.”

Defendant’s witness Perdue testified as follows: “I knew Hansford in his lifetime and was present when he was killed. I was standing in front of the tool house, just in front of the door, and Hansford was on the track opposite the door. He was standing on the main line track to the dumps. I saw the engine strike him. At that time lie was near the center of the^ track. He had been standing in the center of the track tost'he best of my recollection two or three minutes — not longer than that. He said 'to me, ‘Let’s go home,’ and I said, in a few minutes. When he said that he was standing where he was struck on the track. After I said that, I ordered the negroes to shove the push car down there; to put off some rails, and I hadn’t hardly 'said the words before the engine dashed up 'and struck him. It ivas about two or three minutes' after I spóke tó him that the engine dashed up. *355During tliat time he was standing on the track in the same place. His face was towards me when he was struck — towards the tool house.. When he called to me I looked around, 'and he -stopped when he said the words, and of course he was looking towards me when lie directed the remarks to me. After he spoke he staid right in the same place till he was struck. I did not see the engine till it struck him. At the time he called all the tools had not been taken off the car; I think there were a feAv tools 'left to take off, and after two or three minutes, while we were taking them off, the accident to'ok place.”

Plaintiff’s testimony also tended to show that it was dark and there was ho head-light burning on the engine that ran over the decedent; that no hell was ringing and no whistle was blown after the engine left the cinder-dump. That the engine did not stop after running over decedent until it had reached its usual stopping place, to go into the furnace switch, a distance of 200 yards, from the tool house. That it was running when it passed the tool house from 6 to 12 miles an hour. One of the-plaintiff’s witnesses testified that the engine was visible-all the way down the track -from the dump, and that -lie-saw it on -the dump and ‘all the way -down. Some of the plaintiff’s testimony tended to show that there- was a path from the furnaces which -crossed the railroad tracks, of the defendant near the tool house. The witnesses who» testified to the existence -of this path, except the witness: Black, placed it on the side of the tool house towards, the coal bin. Black placed it on the side -of the tool house towards the cinder dump. Plaintiff’s witness Brown testified that the only path was -on the side of all the railroad tracks from the furnace; did not cross any of the tracks; stopped 50 yards from the tool house, and. ran 'from a spring -on the far -side of the railroad tracks, to -some little houses occupied by negroes.' Other testimony of defendant tended to show that there was no path across the tracks past the tool -house. The largest estimate of the daily travel across this path was 20 persons passing in the rooming, and 20-in the evening.- Defendant’s testimony and some of plainttiff’s tended to show *356that those traveling across the track passed not at any particular place but everywhere within a distance of 500 yards from the cinder dumps to the coal bin. The testimony showed that the nearest houses to the place of the accident were 200 yards away across 'all the tracks from the furnaces, and consisted of 10 or less little negro huts. Other than 'these, the nearest houses were situated one and one-half mile away. Defendant's testimony tended to show that it was not good dark at the time of the accident, and that the head-light was burning then.

During the examination of Dode Blocton as a witness for the plaintiff he was asked “To state how many people, if any, pass over that track, along that path from the furnace daily?” The defendant objected to this question, because it called for illegal and immaterial evidence. The court overruled the objection and the defendant duly excepted. This ruling constitutes the basis of the 2d assignment of error. This witness was also asked the following question: “Now tell whether or not before you saw the man under the train you heard any bell or whistle on that engine?” The defendant objected *to*this question, because it called for irrelevant and immaterial evidence, and duly excepted to the court’s overruling its objection. This ruling constitutes the basis of the 3d assignment of error. The witness answered that he did not hear the bell and that no whistle was blown. The 4th assignment of error was based upon the court’s overruling the defendant’s objection to the following question, which was propounded to the witness Blocton: “State to the jury whether if there had been a head-light on this engine you could have seen it?”

Upon the examination of one Lewis, a witness for the plaintiff, he was asked the following question: “According to your best judgment, as near as you can arrive at it, about how many people work for the furnace?” The defendant objected to this question, because it called for irrelevant and immaterial evidence. The court overruled the objection, and the defendant duly excepted. This ruling constitutes the basis of the 7th assignment of error. The witness answered about three hundred. The 9th assignment Was based upon the court’s overruling *357the objection to the question propounded the witness Mrs. T. Hansford: “What hour did he, (the deceased) go to work in the morning, and what hour did he return from the furnaces?” The 10th assignment of error was based upon the court’s overruling the defendant’s objection to the following questions which were propounded to one of the witnesses for the defendant: “Isn’t it nearer to cross by the tool house going in the direction in which Hansford lived?” The 11th assignment of error was based upon the court’s overruling defendant’s objection to the following question, which was propounded by the plaintiff to one of the defendant’s witnesses: “If you had noticed for the headlight when it started up the dump, could you have seen it?”

Upon one of the witnesses for the defendant testifying that he did not know exactly how many people crossed the track by the tool house a 'day, and did not know whether as many as 20 crossed the track at that point, the plaintiff then asked the witness the following question : “There might have been more and-there might have been less, mightn’t there?” The defendant objected to this question, because it called for a conjecture or mere opinion on the part of the witness. The court overruled the objection, and the plaintiff duly excepted. This is the basis of the 13th assignment of error. The rulings of the court which are called in question by the 5th, 6th, 8th and 12th assignments of error are sufficiently shown in the opinion.

The court in its oral charge to the jury, among other things, instructed them as follows: “It may he that out in country some pedestrian is about to cross the track ahead of the approaching train, but nevertheless because of the infrequency of such crossing, the law don’t impose on the engineer the duty of ringing the hell or blowing the whistle at -such place. Nevertheless it is the duty of the engineer not to go over such crossing without observing some precautionary measure. It isn’t his duty to ring the hell or blow the whistle; it i-snt his duty to keep a special lookout, but it is bis duty to keep a general lookout.” The defendant- thereupon in the presence of the *358jury and before it retired excepted to tlie following portion of the oral charge: “Rut it is his duty to keep a general lookout.”

The defendant also separately excepted to the following portions of the court’s general charge Which are numbered for the, convenience of reference: (1.) “Damages in a case of this kind are what the law calls punitive. This is damages imposed by 'way of punishment for the wrongful killing of a person.” (2.) “Now if the plaintiff has proven by a preponderance of the evidence to your reasonable satisfaction the allegations of the complaint, then she is entitled to recover, unless the defendant proves that the deceased was a trespasser on the track, and was, therefore, guilty of contributory negligence, in which case the plaintiff 'would not he entitled to re-recover.” (3.) “The plaintiff must prove, in the first place, to the reasonable satisfaction of the jury that the defendant was guilty of negligence. Then that entitles her to recover unless the 'defendant proves to the reasonable satisfaction of filie jury the negligence of the plaintiff.”

The defendant requested the court to give-to -the jury the following written charges, and separately excepted to the court’s refusal to give each of them as asked: (1.) “If the jury believe the evidence they must find for the defendant under the seventh count of the -complaint. (2.) “The defendant’s employes on its locomotive engine did not owe the intestate the duty of keeping a lookout for him, as the engine approached the point where he was killed.” (3.) “If the jury should find for the plaintiff they can not award damages for the purpose of punishing defendant.” (4.) “If the jury believe from the evidence that the plaintiff’s intestate was crossing the defendant’s track at the time of his death, the only duty the defendant owed the intestate was not to injure him wantonly, willfully-or intentionally.” (5.) “If the jury believe from the evidence that the plaintiff’s intestate al the time of bis death was crossing -the track of defendant, then be was'a mere licensee and entitled only to the care *359due to such,a licensee.” (G.) .“The duty owing to a licensee is not to injure hini willfully ór wantonly.* (7.) “If the jury believe the evidence they must find that the intestate was guilty of contributory negligence.” (8.) “The burden is on the plaintiff to show that at the time of the intestate's death, the servants of the defendant in charge of the engine and train that ran over intestate knew that many persons passed and repassed over defendant’s track at the point of the accident in order that under the evidence any higher or more exacting duty should be required of defendant’s servants in charge -of its train because of such fact.” (9.) “There was nothing in the locality and surroundings of the place of the accident to impose any higher measure of duty on defendant as to intestate than the ordinary duty due to persons crossing a railroad track.” (10.) “If the jury should find for the plaintiff, the measure, of her damage should be such amount as the jury may find from the evidence was the pecuniary value of intestate’s life at the time of his death.” (11.) “If the jury find for the plaintiff, they can award only nominal damages.” (12.) ““If the-jury believe that the intestate was crossing the track at the time of his death, the defendant still did not owe him the duty to keep a special lookout for him.” (13.) “Even if the jury find from the evidence that intestate was crossing defendant’s track at the time of his death, and that the defendant’s servants failed to ring the hell or blow the whistle or have a head-light burning or keep a lookout ahead, still the jury must find for the defendant.” (11.) ‘“If the jury believe the evidence they must find that the decedent Thomas Hans-ford was a trespasser on the defendant’s track at the 'time of his death.” (15.) “The jury are not authorized to find from the evidence in this case that the intestate was crossing defendant’s track at the time of his death.” (1G.) “The defendant’s engineer did not owe the intestate the duty of blowing the whistle as his engine approached the point of the accident.” (17.) “The defendant’s fireman -did not owe the intestate the duty of ringing the'bell .as the engine apprqached. the place of the accident.'’ ’ (18.) '“It. -\vas not the duty of the defendant’s *360servant on its engine that ran over and killed intestate to ring the bell or blow the whistle as the engine approached the point of the accident.” (19.) “If the jury should find for the plaintiff, they must give such damages as will compensate the estate of the plaintiff’s intestate.” (20.) “If the jury should find for the plaintiff, they must give such damages 'as will equal the money value of the life of the deceased to his next kin.” (21.) “If the jury believe there was a path where plaintiff’s intestate was killed, and that he was crossing defendant’s track at it, the existence of the path imposed no higher duty on defendant in operating its trains towards persons crossing its tracks at the path than at other places of similar character where no path existed.” (22.) “The' jury are not authorized to charge the defendant in this case because of any negligence on the part if its employés in the matter of keeping a lookout as the engine approached the point of the accident, if the jury' believe such employés were guilty of such negligence.”

There were verdict and judgment for the plaintiff,, assessing his damages at $3,000. The defendant appeals,, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Walker Percy and William I. Grubb, for appellant,

cited *Stringer v. Ala. Mineral R. R. Go.,*99 Ala. 397 ; *L. & N. R. R. v.*Hairston, 97 Ala. 351; *Haley,,. Admr. v. E. G. M. & B. R. R. Go.,*21 So. Rep. 357*; R. R. Go. v. Meaclors,*95 Ala. 137*;„A. G. S. R. R. Go. v. Linn,*103 Ala. 139.

Gregg & Thornton and Ward *&*Houghton, *contra,*

cited Sí. cG *N. R. R. v. Sullwan,*59 Ala. 272; *S'. & N. K~ R. v. Sheerer,*59 Al'a. 672 ; *West v. Thomas,*97 Ala. 622; *A. G. S. R. R. v. Arnold,,*80 Ala, 600; s. c., 84 Ala. 159;, *M.*cG *E. R. R. v. Thompson,*77 Ala. 456; *Parhhurst v. Johnson,*45 Am. Rep. 28. ■

DOWDELL, J.

This is an action for damages for an alleged negligent killing of appellee’s intestate by a locomotive engine while being operated 'by tbe servants *361and. employés of the defendant company over its track or road. The amended complaint contained twelve counts.. The court below gave the affirmative charge for the defendant on all of said counts except the seventh. This count alleges in substance that appellant, the Tennessee Coal, Iron & Railroad Company, on December 7th, 1896, owned and operated a railroad, engines, locomotives and oars and other appurtenances thereto belonging, at or near a town or village known as Easley City, in said county of Jefferson and State of Alabama; that there ■was a footway or path leading across one of defendant’s, ■said railroads, over which many persons passed daily about 5:30 P. M., which the defendant, its agents and servants well knew; that on said date, and about 5:30 P. M., said time being about dark, the plaintiff’s intestate was walking along said path at a point where the same crosses said railroad when the defendant, its agents or servants, without giving any notice of the approach of one of its engines or locomotives to said crossing by ringing a bell or blowing a whistle, and without the use of a headlight on said locomotive, which it was ■its duty to do in the premises, did at the time aforesaid, and when the plaintiff’s intestate was crossing said track at said crossing, violate its said duties, and negligently propelled said* engine or locomotive along said track towards and across said crossing, causing said locomotive or engine to strike, run over and kill said intestate.

To this count six pleas were filed by the defendant, the first being the general issue and the remaining five setting up contributory negligence on part of plaintiff’s intestate. On this state of the pleading issue being joined, a trial was had, resulting in a verdict for the plaintiff.

The charge of negligence in the complaint, is predicated upon acts of omission on the part of the defendant and consisted in the failure of defendant’s agents or employes in control and management of the locomotive to ring the bell or sound the whistle, and in the failure to have a headlight burning on its approach to the place of the accident. These are the only acts of negligence averred as a proximate cause of the injury. There is *362no charge of negligence .on the part of defendant or its servants in control of the engine or locomotive in a failure to maintain a lookout, and under the issue so made up, the question of the duty of maintaining a lookout whether general or special was wholly irrelevant.

While the said deceased had the right to go upon the defendant’s railroad track for the purpose of crossing the same on his -way to his home, and this right of -crossing -said track he had, regardless of the existence of a.pathway, without being a tresspasser in -the exercise •of such right, yet under the averments in the complaint this right was only a crossing right, to be exercised immediately after his ascertaining by his stopping sufficiently long to look and listen to see that he could proceed with safety to himself. He had no right to linger upon ¡the track or walk along tire same, or upon the right of way of defendant in dangerous proximity to the track, the doing of which "would constitute liim a tress-*passer.-*— L. *& N. R. R. Co. v. Hairston,*97 Ala. 352; *Stringer v. Ala. Mid. R. R. Co.,*99 Ala. 397; *Ensley R. R. Co. v. Ch*ewning, 95 Ala. 24.

The burden of proof was upon the plaintiff to show that deceased was killed by 'defendant’s locomotive while the deceased was in tire exercise of this right of immediate crossing and without -delay, and that the -acts of negligence alleged in the complaint on the part of defendant were the proximate cause of tli-e injury. The fact that plaintiff’s intestate was himself an employe of defendant company, being employed -at work at its furnaces, was wholly immaterial under the issues in the case. Under the -averments in the complaint, his relation to the defendant company 'as an emp-loyé in another and different branch of 'its service, imposed no greater duty upon the defendan t at the -time and place mentioned than that due -to any other person exercising the legal right of crossing its tracks. We think that the evidence as disclosed by the record fails to show that the plaintiff has discharged the burden placed upon her bv the law in making out her case. Thqre is no testimony by an eye-witness to the occurrence, that the decedent was crossing the tracks at the time he was -struck by the loco*363motive, nor any evidence from which we think such fact could be reasonably inferred, while on the ■contrary, the testimony of the eye-witnesses to the killing, as well as the tendencies of the whole evidence, go to show that the deceased was not crossing' nor in the act of crossing, as he hud a right to do, at the time of the injury, hut was standing or lingering upon the track.

The plaintiff's witness, Dode Bloeton, expressly disclaims having seen decedent at all until after he had been struck and carried along the track by the engine. 1-Iis testimony throws no light on where he was when struck or what lie was doing when he was struck, Will Black, another witness for the plaintiff, testifies that he first saw him step on the track above the tool house toward the cinder dump aud walk along the track twenty feet further down than the path, where ’lie was struck bj" the engine. His testimony clearly shows that the decedent was a *trespasser*— Ensley *Ry. Co. v.*Chewning, 93 Ala. *24.*Nelson Goree, another of plaintiff’s witnesses, testifies that when he first saw the decedent he, decedent, was Standing between the side-track and the main line in front of the tool house. He then saw him no more for two or three minutes, after which the engine came along past the tool house and struck him. The witness did not see him when he was struck. He saw him standing within three and one-half feet of the main track two or three minutes before the train came along, and saw him no more then until after he was killed. According to this witness, the decedent had been standing for two or threp minutes on the right of way between the two tracks and in dangerous proximity to them. This was not the exercise of his legal right of immediate crossing.— *Stringer v. Ala. Mid. R. R. Co.,*99 Ala. 397; *L. & N. R. R. Co. v. Hairston,*97 Ala. 351.

Johnson and Perdue, witnesses for the defendant, each testify that the decedent stood in the center of the main line, from two to five or six minutes waiting for Perdue to finish unloading tools from a hand-car, and to go home with Mm. These are the only eye-witnesses to the accident^ except the witness, Mandy. This witness testifies that lie'was one hundred'yards from the *364place of accident, waiting to relieve the engineer of the- ' engine which ran over the decedent. He saw the engine coming down the track towards the tool house. He did not see Hansford, the decedent, on the track at any time, did not see him struck by the engine and didn’t know he was killed until he was told about it some time after. He saw the section foreman and some of his men get off thettrack, and says he did not see anybody get on the track after the section foreman got off. This witness says: “I looked down the track as the section gang'got off the track, and I never looked any more after that until the engine came along right np the side of me.” * * * “I saw the section boss get off just before the train passed by — justa half -a minute before, not that long, I expect — - just a few seconds. I don’t knoAV whether Mr. Hansford was on the track ivhenthe section foreman got off or not. If lie had got on there and stayed there I think I would, have seen him. I don’t know whether he was on or not.” It is clear that this witness does not undertake to testify to the positive fact that Hansford was not standing on the track, or a knowledge of that fact. It was about dark and he was one hundred yards away, and -he says that he -did not look back down the track any more after the section foreman got off; that 'he thinks he would have • seen decedent of he had got on the track and stayed there, but as a conclusion of his whole statement, the witness says he does not know whether Hansford was on the track or not. We do not think the testimony of this-witness raises any conflict in the evidence as to the fact that the decedent at the time of the accident was lingering-upon the track or in dangerous proximity, and was-not exercising Ms legal right of an immediate crossing. The statement by the witness that he *“thinks*he would have seen the decedent if he had gotten -on the track and stayed there,” was at most but an expression of' opinion, for -he 'says he did not look back after the section foreman got off the track, and is not the equivalent of an affirmative statement of the fact that witness-would have seen Mm if he had gotten on the track and' stayed there. Moreover, it eleafTv -appears that even-in the exercise of the legal right of immediate crossing,. *365that if he, the decedent, had stopped 'to 'look and listen, as it was his duty to do, there was nothing to prevent his .seeing the approaching locomotive and to have saved himself from the injury. If he did not stop and look and listen, or if he did and then attempted to cross immediately in front of an approaching locomotive, in either case he Avas guilty of *negligence*— Central *of Ga. Ry. Co. v.*Foshee, *ante*p. 199.

We decline to consider the assignments of error as to the action of the 'court upon demurrers to the complaint, for the reason that the record shows no judgment by the court upon these demurrers. What is stated in the. record shows' nothing more than a mere memorandum or recital by-the clerk, and not a consideration and adjudging by the court necessary 'to constitute a judgment. The rulings of the court on the admission of evidence raised by assignments of error numbered 2, 3, 1, 7, 9, 10, 11 and 13 are free from fault as the tetimony tended to proAre the allegations of the complaint.

Whether or not many persons Avorked at the furnaces, and crossed the track at the point where Hansford Avas killed, the time of the crossing, ’whether there Avas a 'headlight 'burning on the engine, or the bell was rung or Avhistle Avas -blown at the time of the injury, Avhether the Avitnesses had the opportunity of seeing and hearing the facts stated, Avere pertinent to the *inquiry.-*— L. *& N. R. R. Co. v. Orr,*121 Ala. 489; *M. & C. R. R. Co. v. Martin,*117 Ala. 367.

A Avitness may testify to the absence of a thing or the non-appearance of an event, if it is shown he Avas in a position to '¡See and hear the thing inquired *about.*— Tes*ney v.*State, 77 Ala. 33; *McVay v.*State, 100 Ala. 110; *A. G. S. R. R. Co. v.*Linn, 103 Ala. 134.

The assignments of error numbered 5, 8 and 12 are based on objections to testimony calling for the custom of defendant ■'with reference to lighting the headlight of the^engine. This was immaterial, the question being the carrying of a head-light burning on the particular occasion.

The 6th assignment is based upon the admission of evidence against defendant’s objection tending to show *366that 'the engine in question had no’ pilot or cowcatcher. No negligence charged in the complaint Involved this inquiry; it ivas immaterial under the issues, and we think calculated to prejudice the minds of the jury, and its admission against dbjection was error.

What we have said with reference to the issues and the evidence relevant to such issues is sufficient to dispose of other assignments of error based on exceptions to parts of the oral charge, as ivell as to refused- written charges requested by the defendant, without ’a more particular discussion of those exceptions.

For the errors indicated in the foregoing opinion the judgment of the court must be reversed and the cause remanded.