
    Kansas City, Memphis & Birmingham Railroad Co. v. Crocker.
    
      Action for Damages against Employer, by Injured Braheman.
    
    1. Injuries to employe by negligence in management of hand-car, or lever-car. — A lever-car, or car propelled by hand, such as is in general use on railroads by the workmen engaged in repairing and keeping up the track, is within the spirit and terms oí the statute (Code, § 2590, subd. 5) which gives an action against the employer for injuries suffered by.an employe by reason of the negligence of any person in the service who has charge of “any signal, points, locomotive, engine, switch, car, or train upon a railway.”
    2. Evidence as to speed of moving car; what witness may state.. — Where the injuries complained of are alleged to have been caused by the negligence of the foreman of a car on which plaintiff was working, by suddenly checking it while moving at a rapid rate of speed, whereby plaintiff was thrown oft, run over and injured; the rate of speed of the car being relevant and material to the issue, and plaintiff: having testified that it was moving at the rate of eight or ten miles an hour, he may be asked, “About how fast, compared to a man running?” and may answer, “It was running faster than a man could run.” '
    3. Relevancy of evidence as to cause of stoppage of car. — Plaintiff’s injuries having been caused by the sudden stoppage of the hand-car on which he was an employe, the foreman applying the brake without notice, and there being no evidence that an extra train was heard or seen approaching, the defendant company can not be allowed to prove that, by a rule of the company, it was made the duty of the person in charge of the hand-car at once to stop and remove it from the track when a train was seen or heard approaching.
    4. Contributory negligence as defense, and how pleaded. — In an action to recover damages ifor personal injuries, contributory negligence on the part of the plaintiff himself is defensive matter in the nature of confession and avoidance, must be specially pleaded (Code, § 2675), and is not available under the general issue. (Overruling Government Street Railway Co v. Hanlon, 53 Ala. 70, and declaring North Birmingham Street Railway Co. v. Calderwood, 89 Ala. 254, explained and qualified by later cases.)
    5. Leading questions to a witness, such as suggest to him the answer desired or expected, are properly ruled out, if objected to.
    6. Charge to jury as to weighing evidence or counting witnesses. — A charge instructing the jury that is their duty to weigh the evidence, and not merely to count the witnesses, is not erroneous, nor liable to cause injury.
    7. Negligence in sudden application of brake to hand-car. — If the foreman of a hand-ear on a railroad track, knowing that the men who work the handles of the lever sometimes let go the handle after pushing it down, on a down grade, having nothing else to hold on to, suddenly applies the brake and stops the car, without notice to them, and without looking to see that none of them are in such dangerous position, “the inference of negligence is clear and certain,” and the court may instruct the jury that this is negligence.
    8. Charge too favorable to party excepting. — When the defense of contributory negligence is not presented by the pleadings, the defendant can not complain of a charge which “leaves it to the jury to say whether, under the evidence in the case, the plaintiff was guilty of contributory negligence.”
    9. Charge as to conflicting evidence. — A. charge instructing the jury, where the evidence is conflicting on material facts, that if they can not say who has told the truth, then they must find the facts so far as there is conflict not proved, and if such facts are necessary to be proved in order for the plaintiff to recover, they must find for the defendant, is properly refused.
    10. Negligence in stopping hand-car suddenly; custom as to notice. — The foreman of a hand-car on a railroad track, stopping it suddenly by an application of the brake while moving rapidly on a down grade, at a place where it was not usual to stop, and without giving notice to the men working the lever, may be guilty of negligence, if the jury so find, without proof of any custom requiring him to give notice.
    11. Presumptions as to pleas. — When no pleas are set out in the record, but it shows that a trial was had on issue joined, and that special defenses were considered by the court below without objection, the appellate court will presume, in favor of the judgment, that proper pleas were filed to let in those defenses; but, when the only plea set out in the record is the general issue, the appellate court will not presume, in favor of a reversal, that special pleas were also filed; nor will such presumption be indulged bécatreuTtiSTrttt”of exceptions shows that plaintiff introduced evidence bearing on such defenses,-in rebuttal of defendant’s evidence in support of them, nor because he asked charges based on them.
    12. Recklessness, or willful or intentional wrong, as avoiding contributory negligence.■ — Under a complaint which alleges that plaintiff’s injuries were inflicted wantonly, willfully and intentionally, a recovery can not be had on proof of simple negligence merely, nor is contributory negligence a defense to the action; but a count which charges that the injury was caused “negligently, carelessly, and recklessly,” is not the equivaleut of a charge that it was done wantonly, willfully or intentionally.
    Appeal from tbe City Court of Birmingham.
    Tried before the Hon. H. A. ShaRPE.
    This action was brought by Samuel C. Crocker, a minor, suing by his next friend, against the appellant railroad company, to recover damages for personal injuries sustained by plaintiff while in defendant’s service, and which were alleged to have been caused by the negligence of the foreman under whom he was working as a section-hand. The injuries were received on the 7th January, 1890, and resulted in the amputation of one of the plaintiff’s legs. The action was commenced on the 24th May, 1890. The complaint contained two counts, each of which alleged that, at the time of the accident, plaintiff was in the defendant’s service as a laborer, or section-hand, working under one Charles West, to whom as foreman was intrusted the superintendence of a “car propelled by band, called a lever-car,” and also of tbe several section-bands under bim. Tbe first count alleged that, on tbe day specified, “whilst said car, under tbe superintendence of said West as foreman, was being propelled at a rapid rate of speed down a long and steep grade, and plaintiff was on tbe front end of said car, propelling tbe lever of said car under tbe direction and superintendence of said foreman, said foreman negligently and recklessly applied tbe brakes to tbe wheels of said car with too much force and suddenness, and negligently checked tbe speed of said car suddenly and without warning, whereby plaintiff was violently thrown from said car, and in front thereof,” was run over,' and injured. Tbe second count alleged that, on tbe day specified, “said car was being propelled at a rapid rate of speed,” at a certain place on tbe defendant’s track, “under tbe charge and control of said foreman, and plaintiff was working tbe lever at tbe forward end of said car, under tbe direction of said foreman; and said foreman, negligently, carelessly and recklessly, applied tbe brakes to tbe wheels of said car with great force and suddenness, without warning or signal, whereby tbe speed of said car was suddenly and violently checked, and plaintiff was thereby violently thrown from said car,” &c.
    There was no demurrer to either count of tbe complaint, but, after verdict for tbe plaintiff for $6,000, the defendant moved in arrest of judgment, and specified twelve alleged defects in tbe complaint, as grounds for an arrest of judgment ; all of which were overruled and refused. Tbe record shows that tbe defendant filed three pleas: (1) that tbe allegations of tbe complaint are untrue; (2) a denial of each and every allegation of tbe complaint; (3) not guilty. If any other pleas were filed, tbe record does not show it, only reciting that tbe trial was bad on issue joined.
    Tbe bill of exceptions purports to set out all tbe evidence introduced on tbe trial, and shows several exceptions reserved by tbe defendant; but a summary of tbe evidence is not necessary to an understanding of the points decided by this court. At tbe request of tbe plaintiff, tbe court gave the following charges to tbe jury: (1.) “It is tbe duty of tbe jury to weigh tbe evidence, and not merely to count tbe witnesses.” (2.) “If tbe jury believe from tbe evidence that West knew that tbe persons operating tbe band-car were at times in tbe habit of turning loose tbe lever when tbe car was running down grade, and that be applied tbe brake at a place where they were not accustomed to stop, so as to check tbe speed of tbe car with unnecessary and dangerous suddenness, without notice to the persons operating tbe same, or looking to see whether they were holding to the lever, then such act of West was negligence.” (3.) “The court leaves it to the jury to say whether, under the evidence in the case, the plaintiff was guilty of contributory negligence.”
    The defendant excepted to each of these charges as given, and also to the refusal of twenty-three (23) charges asked in writing. The first charge instructed the jury that they must find for the defendant, if they believed the evidence; the second, that they must find for the defendant under .the first count; the third, that they must find for the defendant under the second count, and the others were as follows :
    (4.) “It is the duty of the jury to reconcile conflicting testimony, and they must say, if they can determine, who has told the truth ; and if they can not say who has told the truth, then they must find the facts, so far as there is conflict, not proven in the case; and if such facts are necessary to be proven in order ior plaintiff to recover, they must find for the defendant.”
    (5.) “It is necessary in order that plaintiff recover in this action, for the jury to find that it was safer for the plaintiff to have hold of the handle of the lever then not to have hold of it, and further to find that his not having hold of the handle of the lever at the time of his injury was the proximate cause of his injury; and if the jury find that it was safer for the plaintiff to have hold of the handle of the lever than not to have hold of it, and that his not having hold of the handle of the lever at the time of plaintiff’s injury was the proximate cause of his injury, then the plaintiff was guilty of contributory negligence as matter of law, and they must find for defendant.”
    (6.) “If it was the custom for the section foreman, West, to give no notice of the application of the brake before applying it, when he was near enough to apply the brake himself; that this custom was known, or should have been known, to the plaintiff, then it was not negligence for the section foreman to fail to give such notice when he applied the brake just before the plaintiff was hurt.”
    (7.) “Under the rule of the company introduced in evidence in this cause, if from the evidence you shall believe that the plaintiff, before and at the time he was hurt, had knowledge of such rule, it was the duty of the plaintiff to be cautious at all times, and to be prepared at all times for the passage of both regular and extra trains.”
    (8.) “If you believe from the evidence that defendant’s section foreman did not give plaintiff any notice tbat be was about to apply tbe brake before be did apply tbe brake, and tbat sucb failure to give notice was tbe proximate cause of plaintiff’s injury, tben you must find for defendant.”
    (9.) “Under tbe evidence in tbis case, tbe failure of tbe section foreman to give notice before be applied tbe brake tbat be was going to apply tbe brake, was not negligence.”
    (10.) “If it was less dangerous for tbe plaintiff to keep bis band all tbe while on tbe handle of tbe lever, than to turn it loose while it was down and bold on to it only while it was up, and if it was practicable for tbe plaintiff to bold on to tbe handle all tbe while, tben it was negligence for tbe plaintiff not to bold to tbe handle of tbe lever all tbe while.”
    (11.) “If you believe from tbe evidence tbat tbe car bad reached a point about where tbe section foreman was accustomed to stop it, and tbat tbe plaintiff knew of this custom, tben it would be negligence on tbe part of tbe plaintiff for him not to be prepafed for tbe stopping of tbe car at sucb place.”
    (12.) “If you believe from tbe evidence tbat tbe car bad reached a point about where tbe section foreman was accustomed to stop it, and tbat tbe plaintiff knew of tbis custom, tben it would be negligence on the part of tbe plaintiff not to expect tbe car to stop at sucb place, and be prepared for sucb stop.”
    (13.) “Under tbe evidence in tbis case, tbe jury are not authorized to find tbat defendant’s band-car was stopped in an unusual and negligent way.”
    (14.) “If you believe from tbe evidence in tbis case tbat tbe lever-car was going at tbe rate of eight or ten miles an hour, or as fast as a man could run; that tbe plaintiff was standing on bis feet with bis back turned towards tbe direction in which tbe car was going, with tbe handle of tbe lever just in front of him, moving up and down, but not so fast but tbat plaintiff could keep bis band on tbe handle as it went up, and failed to keep bis band on it as it went down; tbat while it was-down, and while plaintiff’s band was off tbe handle, tbe section foreman, without notice to tbe plaintiff, applied tbe brake to stop or check tbe speed of tbe car; that tbe checking of tbe car under sucb circumstances caused tbe plaintiff to lose bis balance and fall from tbe car; tbat bis failure to keep bis band on tbe handle contributed to bis injury, tbe brake being applied when plaintiff’s band was off the handle; tben you must find for defendant,”
    
      (15.) “If you believe from tbe evidence tbat tbe plaintiff’s failure to bave bis band on tbe handle of tbe lever at tbe time tbe brake was applied was' partly tbe canse of bis injury, then you must find for tbe defendant.”
    (16.) “I charge you, tbat it was negligence, under tbe evidence in this case, for tbe plaintiff to stand on tbe car (while it was running at tbe speed it was going at) with bis band off tbe handle of tbe lever, if you believe from tbe evidence tbat at such time, and while going at such speed, it was practicable for tbe plaintiff to keep bis band on tbe handle.”
    (17.) “I charge you tbat a lever-car is not a car within tbe meaning of sub-division five of section 2590 of tbe Code of Alabama.”
    (18.) “If tbe evidence leaves tbe jury in doubt and uncertainty as to whether plaintiff’s injury was caused by bis having received no notice from tbe section foreman tbat be was going to apply the brake before be did apply tbe brake, they must find for defendant.”
    (19.) “If the jury find tbat tbe only benefit which tbe plaintiff would have derived from being notified by tbe section foreman tbat be was about to apply tbe brake, before be did apply tbe brake, was tbat it would bave given tbe plaintiff an opportunity to bave caught bold of tbe handle of tbe lever before be fell from the car, then tbe jury are not authorized to charge tbe defendant because of such want of notice.”
    (20.) “If the jury find from tbe evidence tbat tbe plaintiff did not bave bold of tbe handle of tbe lever immediately before tbe time be fell from tbe band-car, and further believe tbat plaintiff would not bave fallen from tbe band-car if be bad bold of tbe handle of tbe lever, immediately before tbe time be fell from tbe band-car, then they must find for defendant.”
    (21.) “Under tbe evidence in this case, it was not negligence on tbe part of defendant’s section foreman to fail to notify plaintiff tbat be was about to apply tbe brake before be did apply tbe brake.”
    (22.) “If tbe jury believe from tbe evidence tbat it would bave been safer for tbe plaintiff to bave bad bold of tbe handle of tbe lever immediately before be fell off tbe band-car, and tbat be fell off of tbe band-car because be did not have bold of tbe handle of tbe lever immediately before tbe time be fell, then they must find tbat plaintiff was guilty of negligence which contributed to bis injury, and be can not recover in this action.”
    
      (23.) “Unless tbe jury find from tbe evidence tbat it would bave been safer for tbe plaintiff to bave bad bold of tbe handle of tbe lever than not to bave bad bold of tbe handle of tbe lever immediately before be fell off tbe band-car, and further find tbat bis not having bold of tbe handle of tbe lever immediately before be fell off tbe band-car was tbe proximate cause of bis injury, they must find for defendant.”
    Hewitt, Walker & Porter, and Wallace Pratt, for appellant,
    submitted an elaborate printed argument, in which they discussed each of tbe assignments of error, 35 in number, and also filed two written arguments in support of their application for a rehearing. They relied mainly on tbe following points and authorities: (1.) Tbe complaint shows no cause of action, because it shows tbat the plaintiff’s injury was received in tbe operation of a lever-car, or car moved by band; and such a car, it is insisted-, is not within tbe purview of tbe statute on which tbe action is founded. Tbe word car, as found in tbe statute, was added by tbe codifiers, and must be construed in connection with the words associated with it, all of which show tbat tbe statute has reference only to cars which are intended to be drawn by a locomotive engine, though they may not be so drawn at tbe time of tbe injury; and tbe obvious reason is, tbat a band-car, or lever-car, is not within tbe mischief intended to be remedied, but is as easily controlled and managed as a team bitched to a wagon. (2.) Tbe question propounded to tbe plaintiff, as to tbe speed of tbe car, called for illegal evidence, and tbe answer ought to bave been excluded. — Kuhnv. Railroad Go., 70 Iowa, 561; Railroad Go. v. Hundley, 38 Mich. 537. (3.) As to other rulings on evidence, see L. & N. Railroad Go. v. Watson, 90 Ala. 68 ; Railroad Go. v. Propst, 83 Ala. 526; Seeds v. Edmondson, 71 Ala. 509 ; Railroad Go. v. Hcdl, 87 Ala. 708 ; 71 Ill. 366 ; 55 Iowa, 92 ; Taylor v. Monroe, 43 Conn. 36; 89 Amer. Dec. 596, note; 22 Amer. Rep. 592; 111 N. Y. 553. (4.) Tbe first charge given at tbe instance of tbe plaintiff was argumentative ; and tbe second was abstract, misleading, and erroneous. — Rcoilway Go. v. Gedderwood, 89 Ala. 247; Railroad Go. v. Bayliss, 74 Ala. 159; Railroad Go. v. Jones, 71 Ala. 487; Gooh v. Railroad Go., 67 Ala. 540 ; 17 Atlantic Rep. 7; 15 Amer. & Eng. R. R. Cases, 187; 44 lb. 529; 38I&. 25; 26 Iowa, App. 356; Beach Contr. Neg., 157. (5.) There was no proof of any negligent act on tbe part of the foreman, and tbe several charges asked properly presented that question in its different phases. — Thompson v. Duncan, 76 Ala. 334; Railroad Go.v. Walters, 91 Ala. 435; 15 Amer. & Eng. R. R. Gases, 187; 44 lb. 529 ; 38 lb. 25; 21 lb. 535; 26 Iowa, App. 356 ; 17 Atlantic Bep. 7; 35 N. W. Bep. 866; 111 N. Y. 550; 116 N. Y. 628; 14 Amer. & Eng. Encyc. Law, 903, § 19; Couch v. Watson Goal Go., 5 Cent. L. J. 108. (6.) The plaintiff did not exercise that degree of care wbicb a prudent man would have exercised under tbe circumstances, and bis contributory negligence precludes a recovery.— '. db W. Raihuay Go. v. Bradford, 86 Ala. 563 ; Woodtuard Iron Go. v. Jones, 80 Ala. 123 ; Campbell v. Lunsford, 83 Ala. 512 ; G. & W. Raihuay Go. v. Bridges, 86 Ala. 455; Wilson v. L. & N. R. R. Go., 85 Ala. 269; R. & D. Railroad Go. v. Ghasteen, 88 Ala. 591; L. & N. Railroad Go. v. Hall, 87 Ala. 708 ; Lathrop v. Fitchburg R. R. Go., 150 Mass. 423; Humphreys v. Railroad Go., 10 S. E. Bep. 39; Smith v. Railroad Go., 5 S. E. Bep. 896; 16 Pac. Bep. 131; 11 Amer. & Eng. B. B. Oases, 115 ; 34 lb. 488; 27 lb. 216; Shear. Negligence, 142, note 11; Patterson’s Bailway Accident Law, § 66; 2 How. Pr., N. S., 416. (7.) The clefense of contributory negligence was available under the general issue.— Gov. St. Raihuay Go. v. Hanlon, 53 Ala. 76; Garter v. Chambers, 79 Ala. 223; L. & N. Railroad'Go. v. Ferry, 87 Ala. 392; Fryor v. L. (% N. Railroad Go., 90 Ala. 32; Geo. Pac. Raihuay Go. v. Hissong, 91 Ala. 514; Holland v. Tenn. Goal, Iron & R. R. Go., 91 Ala. 444; R. & D. Railroad Go. v. Blade, 9 So. Bep. 568; Hnsley Raihuay Go. v. Ghe.iujiing, 93 Ala. 24; Raihuay Go.v. Davis, 92 Ala. 300; Raihuay Go. v. Lee, 92 Ala. 262; Raihuay Go. v. Caldenuood, 89 Ala. 247. These decisions have settled this question as a rule of practice, and they are substained by the decisions of other courts. — Bridge v. Grand Junction Raihuay, 2 M. & W. 214; Holden v. New Gas Go., 54 E. G. L. Bep. 14; Gun-ningham v. Lynn, 22 Wis. 245 ; 23 Minn. 307; Steele v. Bwrh-hardt, 104 Mass. 59 ; Railroad Go. v. Rutherford, 29 Ind. 82; Turnpike Go. v. Baldwin, 57 Ind. 86. See, also, Thompson on Negligence, 1179 ; Shear. &B. Negligence, §113. (8.) The record shows that the defense of contributory negligence was in issue before the court and jury; that evidence was introduced, without objection, relevant only to that issue, and that charges were given and refused bearing on it. Under these circumstances, this court will presume that the issue was properly presented, either by technical plea, or by waiver of objection to the want of it; will hold the plaintiff to the case on which he relied in the court below, and will not allow a technicality to defeat a meritorious defense. 
      Prior v. Beck, 21 Ala. 393 ; Eastland v. Sparks, 22 Ala. 607; Lucas v. Hitchcock, 2 Ala. 287; Castleberry v. Pierce, 2 S. & P. 141; Jennings v. Cummings, 9 Porter, 310; Barney v. Bush, 9 Ala. 345 ; Bettis v. Saint, 28 Ala. 214; 60 Amer. Dee. Dec. 560; Stanley v. Br. Bank, 23 Ala. 652; Iloiuell v. Reynolds, 51 Mo. 154; Insurance Co. v. Harlan, 72 Mo. 202 ; Young v. Glasscock, 79 Mo. 579 ; Walker v. Owen, 79 Mo. 563. (9.) No recovery could be bad under the second count, wbick alleged that tbe injury was inflicted recklessly, because there was no evidence which tended to show anything more than simple negligence on the part of the foreman. — Railroad Go. v. Coulton, 86 Ala. 131; Railroad Co. v. Johnston, 79 Ala. 436; Railroad Go. v. Jacobs, 92 Ala. 187; Winn v. II. A. & B. Railroad Co., 93 Ala. 306; A. Q. S. Railroad v. Frazier, 93 Ala. 45.
    TaliaubbRO & HoughtoN, in their original brief,
    argued each of the assignments of error in order, and also filed a written argument in reply to the application for rehearing. On the questions of evidence, they cited Railroad Go. v. Crist, 116 Ind. 446; 19 Amer. St. 805, 875 ; 119 Mich. 105 ; 36 Iowa, 462, 662; Gibson v. Hatchett, 24 Ala. 201; Otis v. Thom,, 23 Ala. 469; Railroad Go. v. Edwards, 41 Ala. 567; Tanner v. Railroad Co., 60 Ala. 621. As to the question of negligence on the part of the foreman of the car, they cited Frazier v. L. & N. Railroad Co., 81 Ala. 185 ; Cook v. Central Railroad Co., 67 Ala. 533; Tanner v. L. & N. Railroad Co., 60 Ala. 621; Railroad Co. v. Phillips, 112 Ind. 59, or 2 Amer. St. 155. They contended, also, that the question of contributory negligence was not raised by the pleadings, and that this court would not presume, in favor of a reversal, that such a plea was filed; citing to these points the following-cases: Petty v. Dill, 53 Ala. 641; Howland v. Walla,ce, 81 Ala. 238 ; Daniel v. Hardwick, 88 Ala. 557; Slaughter v. Sioift, 67 Ala. 494; Harper v. Weeks, 89 Ala. 577; Cook v. Central Railroad Co., 67 Ala. 533; Thompson v. Duncan, 76 Ala. 334; Tanner v. L. & N. Railroad Go., 60 Ala. 621; Bingham v. Carlisle, 78 Ala. 243 ; Railroad Go. v. Ohainbers, 79 Ála. 338; Dent v. Smith, 15 Ala. 286; Eastland v. Sparks, 22 Ala. 607; Gray v. Raiborn, 53 Ala. 40; Marriott v. Lewis, ,25 Ala. 332; Railroad Co. v. Perryman, 9Í Ala. 413.
   ’WALKEE, J.

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

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

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

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

4. The question in reference to the danger incurred by one who fails to hold on to anj'thing while standing on a moving lever-car called for evidence which, in connection with the other proof in the case, would have tended to show that the' plaintiff was negligent in that regard. Contributory negligence is in its nature defensive, and the burden of proof to show it is upon the party who relies upon it. The pleas interposed by the defendant in this case did not go beyond a traverse of the allegations of the complaint. If contributory negligence on the part of the plaintiff was relied upon as matter of defense, it should have been specially pleaded. A denial of the charge of negligence made against the defendant in no way involves the averment of negligence on the part of the plaintiff. The defendant’s pleas did not present any issue of contributory negligence.— Thompson v. Duncan, 76 Ala. 334; Mobile & Montgomery Ry. Co. v. Crenshaw, 65 Ala. 566; Louisville & Nashville R. Co. v. Hall, 87 Ala. 708; North Birmingham S. Ry. Co. v. Calderwood, 89 Ala. 247; Beach on Contributory Negligence, § 157. It is proper to exclude evidence which is pertinent only to an issue which is not presented by the pleadings. For this reason, the objections to the questions as to the plaintiff’s negligence in letting go the handle of the lever-car were properly sustained.

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

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

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

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

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

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

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

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

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

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

(In response to application for re-hearing.)

WALKBB, J.

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

Our attention has been called to several cases in which the defense of contributory negligence was considered by this court, though only the general issue was pleaded. Pryor v. Louis. & Nash. R. R. Co., 90 Ala. 32: Hissong v. Rich. & Danv. R. R. Co., 91 Ala. 514. In neither of those cases did the court notice the point. Nothing was said on the subject. Those cases are not authorities against a proposition which was not mentioned therein in any way. Former decisions are entitled to weight, under the doctrine of stare decisis, only when the proposition in support of which they are cited was considered and passed on.

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

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

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

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

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

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