he running about 40 miles an hour, racing with a jitney; that he did not see the automobile before it was hit, but saw it afterwards. On cross-examination he testified that had only known the Boyettes since the accident; that he was painting at the time and had done one job for a Mr. Jones; that he had been in Birmingham for four or five months prior to the accident, and had not been painting all the time. Over plaintiff's objection the witness was asked what other jobs he had had, and replied that he had had four or five different ones-painting a dwelling on Third avenue and working for the Frisco Railroad as a deputy under the sheriff during the strike. Other evidence for the plaintiff tended to show that his car started to turn and cross the street car track; that the congestion of traffic forced his car to stop on the track; and that it was struck by the rapidly ap proaching street car. The tendency of defendant's evidence was that the driver of plaintiff's car turned around upon the track, in the middle of the street, and was moving at the time of the impact; that the street car was traveling 20 to 25 miles an hour, and that there was no congestion of traffic or anything to obstruct the view of the approaching street car by plaintiff's driver. Defendant's witness Daniels testified that he was driving in an ambulance near the scene of the accident; that he witnessed the collision; that plaintiff's car was turning around in the middle of the street, and across the track, that it was moving when struck; that he observed no congestion or obstruction to plaintiff's driver's view. Over plaintiff's objection and motion to exclude, this witness was asked how far, in his judgment, the street car ran after the collision, and answered: on these signs. "7. The court charges the jury that if you believe from the evidence that the plaintiff's brother, in driving the plaintiff's automobile onto or near the defendant's track was guilty of negligence and that such negligence on his part was the sole proximate cause of plaintiff's injuries, it is your duty to return a verdict in favor of the defendants. "8. The court charges the jury that the driver of the automobile in which plaintiff was riding, in approaching the defendants' track for the purpose of crossing it, was under the duty to keep a continuous lookout for apthe track, or so near thereto as that a passing proaching street cars before entering upon street car would strike said automobile." "9. The court charges the jury that the motorman of a street car operating same in a proper manner has the right to presume that an adult driver of an automobile driving toward the street railroad track for the purpose of crossing same will look for approaching street cars before entering upon the track until it becomes reasonably apparent to the contrary from the conduct of such driver of such automobile." "12. The court charges the jury that it was the duty of the driver of the automobile in which plaintiff was riding before driving onto the defendants' track to first look in both directions for approaching street cars, and a failure so to do, if you believe from the evidence there was such failure, constitutes negligence on his part." "13. I charge you, gentlemen of the jury, if you believe from the evidence that the plaintiff's brother in charge of the automobile in which plaintiff was riding was negligent in running the automobile onto or dangerously near the defendants' street car track in front of the defendants' street car, and that this negligence on his part was the sole proximate cause of the collision and plaintiff's injuries, then you should find a verdict in favor of the defendants." "14. The court charges the jury that the motorman of a street car operating same in a proper manner has the right to presume that an apparent adult person approaching the track in an automobile with the purpose of crossing the track will exercise reasonable care in driving the automobile across the track, and he has the right to indulge this presumption until it becomes reasonably apparent to him that said person is heedless or unaware of danger." the duty of the driver of, the automobile in "15. The court charges the jury that it was which plaintiff was riding to keep a continuous The following charges were given at de-lookout for approaching street cars before fendants' request: attempting to drive across defendants' track, and a failure to keep such lookout, if you believe from the evidence there was such failure, constitutes negligence on his part." "3. The court charges the jury that, if you believe from the evidence that the plaintiff sustained his injuries as the proximate result of a mere accident, it is your duty to return a verdict in favor of the defendants." "6. The court charges the jury that, if you believe from the evidence that the driver of the automobile in which plaintiff was riding on the occasion of the collision between the automobile and the street car was guilty of negligence and that such negligence on his part was the sole proximate cause of plaintiff's injuries, it is your duty to return a verdict in "17. I charge you, gentlemen of the jury, that it was the duty of the driver of the automobile in which plaintiff was riding before driving onto the defendants' track for the purpose of crossing it to look in both directions for approaching street cars, and a failure on his part so to do, if you believe from the evidence that there was such a failure, constitutes negligence on his part, and the court further charges the jury that if you believe from the (100 So.) ! the sole proximate cause of the collision and I just turning off the pavement when I first noplaintiff's injuries, then your verdict must be ticed it. It was turning back this way. The in favor of the defendants." automobile did not stop from the time I first noticed it until the impact actually occurred. Black, Harris & Foster, of Birmingham, When I first noticed it, it was turning off the for appellant. Tillman, Bradley & Baldwin, E. L. All, and John S. Coleman, all of Birmingham, for appellees. THOMAS, J. The appeal is in a double aspect from the original judgment, and from that overruling the motion for a new trial. Liverpool & London & Globe Ins. Co. v. Lowe, 208 Ala. 12, 93 South. 765; Lewis v. Martin, 210 Ala. 401, 98 South. 635. The complaint contained counts for simple and subsequent negligence and for wantonness on defendants' part. Defendants pleaded the general issue and contributory negligence. After the parties were in the automobile, plaintiff states, on cross-examination, what happened, as follows: ** curb. My car was about 50 feet from the tiny reverse lever and reversed my car and The several questions presented as error will, for convenience, be considered as presented in argument by counsel. "We hadn't driven any way from the house before commencing to turn across the street car track, except coming right on out. We were driving across the track; the house is practically opposite the place of the accident. It must have taken place angling from the house. After we got in the car we drove about 15 or 20 feet. My brother had been driving my car with my permission. The traffic was [1] The first and second assignments of very heavy on both sides. The congestion error, predicated on the refusal of charges 1 would run in before you in less than a second's and 2, are not sufficiently insisted upon, and time. You could see everything before going on will not be considered. Georgia Cotton Co. the street car track, that you could see after you got on it; everything was in plain view.. Lee, 196 Ala. 599, 72 South. 158, and auThere was nothing to keep you from seeing the [2, 3] Defendants' given charge 3 was jusautomobiles. I think the street is straight and there are two street car tracks in it. There tified by Norwood Transp. Co. v. Crossett, wasn't anything to keep the automobile driver 207 Ala. 222, 225, 92 South. 461; Montefrom seeing street cars on both tracks in both vallo Mining Co. v. Little, 208 Ala. 131, 93 directions. There wasn't anything to keep South. 873, and Ice Delivery Co. v. Lecari, him from seeing the automobile traffic along 210 Ala. 629, 98 South. 901. The fact that there at that time. I saw the street car when the charge dealt with in the Norwood it was about 20 feet away. I was keeping a thorities. lookout the best I could for everything in the Transp. Co. Case, supra, was under evidence way. We were trying to get out. I was keep-developed under a simple negligence count, ing a lookout for street cars." The motorman testified: does not render that decision inapplicable to the instant case., Here the allegations of simple and subsequent negligence and wantonness are contained in separate counts. Under the latter count there must be shown facts evidencing the intention to do or not to do an act, with a knowledge of its probable consequences, before there can be wantonness. The result proximately caused by "a mere accident," hypothesized in defendants' said given charge, is as much at variance with the wanton act or conduct charged in the third count of the complaint as that charged in the negligence counts Nos. 1 and 2. The distinction between negligence and wantonness contained in Randle "The automobile was out in the street when I first noticed it-it was moving; it was approaching sorter towards me; it was making its turn when I first noticed it. When it came in contact with my street car, it was right on the corner of my car-struck the-left-hand corner of my car struck the right-hand front door of their car. I couldn't say whether the wheels of the automobile got on my track or not; if it did it just kind of got on the edge sorter. The automobile with reference to my track was kind of angling, making a circle; it never had stopped, it was making a turn from the south side of the street to the north side. I was on the track coming to Birmingham, on the track where the curb was to my right.. B. R., L. & P. Co., 169 Ala. 314, 325, 326, With reference to this south curb and the south 53 South. 918, does not indicate that there track, the automobile was on the pavement was error in giving defendants' charge 3. over there; it was making its turn just off of [4] Defendants' given charge 4 is supportthe pavement when I first noticed it. It was ed by Morrison v. Clark, 196 Ala. 670, 678, 7? South. 305; Langhorne v. Simington, 188 Ala. I think that the charge in the Saxon Case could 337, 66 South. 85; B. R., L. & P. Co. v. Humphries, 171 Ala. 291, 54 South. 613; B. R., L. & P. Co. v. Gonzalez, 183 Ala. 273, 61 South. 80, Ann. Cas. 1916A, 543; and B. R., L. & P. Co. v. Moore, 148 Ala. 115, 42 South. 1024. This charge was: "The court charges the jury that if, after a fair consideration of all the evidence, any individual juror is not reasonably satisfied therefrom that the plaintiff is entitled to a verdict in his favor, you cannot find for the plaintiff." [5] Defendants' given charge 11 is as follows: "The court charges the jury that if, after a fair consideration of all the evidence, your minds are left in a state of confusion as to whether or not the plaintiff is entitled to recover, it is your duty to return a verdict in favor of the defendants." It is in accord with B. R., L. & P. Co. v. Saxon, 179 Ala. 136, 144, 160, 59 South. 584, 592, where the observation is made as to charge 6 refused to defendant in that case: "Charge 6 expresses the law, and the court erred in refusing to give it. If the jury must be reasonably satisfied, it necessarily follows that, if their 'minds are left in a state of confusion as to whether or not plaintiff should recover,' they cannot find for the plaintiff. L. & N. R. R. Co. v. Sullivan Timber Co.. 126 Ala. 95, 99, 103, 104, 27 South. 760; Calhoun v. Hannan & Michael, 87 Ala. 277, 285, 6 South. 291." Charge 6 in Saxon's Case was: "If, after considering all the testimony in this case, your minds are left in a state of confusion as to whether or not plaintiff should recover in this case, you cannot find for the plaintiff." In that case there were counts for simple and subsequent negligence, and pleas of contributory negligence on the part of plaintiff, etc. The counts for willful and wanton conduct were not supported by the evidence and were excluded by general affirmative instructions given at the request of the defendant. The opinion was by a divided court, but as to the reversible error found to exist for the refusal to give charge 6 there was no divi sion. In A. G. S. R. Co. v. Robinson, 183 Ala. 265, 269, 270, 62 South. 813, 815, charge 16, there considered contained the statement that if after hearing all the evidence the mind of the jury "be in a state of doubt or confusion as to whether or not the plaintiff is entitled to a verdict," they should find for the defendant. The court said of the facts hypothesized: have been well refused, as misleading, if not otherwise bad, as such charges are delusive and calculated to mislead the jury to the extent that they cannot find a verdict for the plaintiff, unthat he is entitled to recover, and the law does less they are absolutely positive beyond a doubt not require such a belief or conviction on the part of the jury. The trial court might not be reversed for giving such a charge as charge 6 in the Saxon Case, supra, as it could be explained by counter instructions, but, as it is calculated to mislead the jury, trial courts should not be reversed for refusing same." The charge in the Saxon Case, supra, concluded with the instructions "you cannot find for the plaintiff." (Italics supplied.) And in Hoffman v. B. R., L. & P. Co., 194 Ala. 30, 69 South. 551, the charge was as that given in Saxon's Case, and held that the "charge was misleading and could have been well refused." The instant question was before the court in B. R., L. & P. Co. v. Milbrat (December, 1917) 201 Ala. 368, 371, 373, 78 South. 224, 229, and it was there held that charge E, which was in the following language, was properly refused: "If, after a fair consideration of all the evidence, your minds are left in a state of confusion as to whether or not plaintiff was entitled to recover, you should find for defendant." It will be noted this charge concluded with the instruction "you should find for defendant." In Monte v. Narramore (January, 1918) 201 Ala. 200, 77 South. 726, charge 9 used the words "in doubt or in a state of confusion," and concluded with the instruction "they cannot find a verdict for plaintiff"; held, by the use of the word "doubt," though coupled in the alternative with "confusion," it "placed too high a degree of proof upon the plaintiff." The court said: "In the case of A. G. S. R. R. Co. v. Robinson, 183 Ala. 265, 62 South. 813, we held, after reviewing the authorities, that charges predicated upon 'doubt' or 'uncertainty,' one or both, are incorrect, and should be refused. confusion' could well be refused, but declined We also suggested that charges using the word to hold that the giving of charges of the last character would amount to reversible error. Since the Robinson Case, supra, we have declined to reverse a case for the giving of a charge using the word 'confused' or 'confusion."" "If their mind is in a state of confusion, they may not be reasonably satisfied, yet, if their mind be in doubt, they may still be reasonably satisfied, as the state of doubt may be The subject was recently considered in very slight or may not be at all reasonable. Allen v. Birmingham South. R. Co., 210 Ala. (100 So.) "I charge you, gentlemen of the jury, that if, after considering all of the testimony in this case, your minds are left in a state of confusion as to whether or not the plaintiff should recover in this case, you cannot find for the plaintiff." It was held that the charge should have been refused, because misleading, "but this court has practically held it was not reversible error to give it, as it could be explained by counter charges." Charges 13 and 15, given for defendant in the Allen Case, supra, contained the words "doubt and confusion as to whether the plaintiff is entitled to recover or not," and instructions (charge 13) "then you cannot find for the plaintiff" and (charge 15) "then you must find for the defendant." These charges were said to be under condemnation by this court, and "should not have been given," because placing "too high a degree of proof on the plaintiff." In Renfroe v. Collins & Co., supra, there were simple negligence and wanton counts predicated upon the death of the minor (under 12 years of age) who was killed while holding to defendant's truck, skating, and which fact was known to the driver of the truck as he "gave it a zigzag course, causing the boy's injury and death." Charge A, declared to be "affirmatively faulty," used the words, "killed as a sole proximate consequence of his own negligence, or as a sole proximate consequence of the violation of the city ordinance," and directed that a verdict in favor of plaintiff might not be re turned under either count of the complaint. The condemnation of the charge is thus expressed in the opinion as first rendered: Adverting to charge 11, given in the instant case, it instructs, as a matter of law. that if, after consideration of the evidence, the jury are (1) “left in a state of confusion" as to plaintiff's right of recovery, it then be comes the duty of the jury (2) "to return a "Its immediate effect was to conclude against verdict in favor of the defendants." The a recovery under the wanton count upon an burden of making out his case to the reason- alternative hypothesis, predicated on the proable satisfaction of the jury was upon the hibition of the ordinance and its violation by plaintiff, and, failing in this-leaving their plaintiff's son, that could, under no circums "minds" "in a state of confusion as to wheth-stances, have justified the, willful or wanton er or not the plaintiff is entitled to recover" injury of the boy." -the plaintiff failed in his proof. It may be that the charge possesses misleading tendencies as to the plea of contributory negligence, yet such misleading tendencies might have been explained by a counter charge. There was no reversible error in giving defendants' charge No. 11. of fact submitted to the jury were the initial simple negligence, the plea of contributory negligence, and the wanton conduct of the defendant under the general issue. The court's justification of the giving of charges J and M in the Karpeles Case is in conflict with the announcements of Mr. Justice Somerville in the case of Grauer v. A. G. S. R. R. Co., 209 Ala. 568, 96 South. 915. The court was divided as to the treatment given charge A. On the rehearing, the approval of charges J and N in Karpeles v. City Ice Del. Co., 198 Ala. 449, 73 South. 642, is considered and differentiated from the condemnation of charge A in Renfroe's Case; the application for rehearing was denied, [6] The "sole proximate cause" charges and the concurrence is not indicated as begiven for defendants are numbers 6, 7, 13, ing otherwise than stated in the original and 17, and are not limited to simple initial opinion. It was not the intent to modify the negligence. These charges sought to hypo-decision in Karpeles' Case, where the issues thesize the negligence of plaintiff's driver as being the "sole proximate cause" of the collision. If this result was believed by the jury to have been caused solely by the initial negligence of plaintiff's driver, the verdict would have been for the defendants under the count predicated thereon. Appellant insists that Allen v. Birmingham Southern R. Co., 210 Ala. 41, 97 South. 93, 95, Grauer v. A. G. S. R. R. Co., 209 Ala. 568, 569, 573, 96 South. 915, Renfroe v. Collins & Co., 201 Ala. 489, 78 South. 395, condemn these charges. The Allen Case contained no plea of contributory negligence and trial was had on the wanton count; held "that issue [contributory negligence] was not before" the jury, and that it was error to give the "sole proximate cause" charge under the wanton count. The Grauer Case, supra, went to the jury on the wanton count alone, and of such charge it was said: * * In the Karpeles Case, supra, it is said: "A number of the charges * * assigned for error by plaintiff, asserted * that, if the speed of the motorcycle * or the negligent operation of the motorcycle, was the sole proximate cause of the death of plaintiff's intestate, or if the alleged violation of the ordinance by defendant's agent did not contribute directly to his death, then defendant was not liable. If defendant's agent exercised due care, then of course the death of plaintiff's intestate must be referred to the negligence of the driver of the motorcycle, or, in the absence of that, to inevitable accident. [* * * The cases of Renfroe v. Collins & Co., But without regard to the possibility of such finding, the charges were cor- supra, and Jefferson v. B. R. & E. Co., 116 rect, for the jury may have found that de-Ala. 294, 22 South. 546, 38 L. R. A. 458, 67 fendant's driver was not at fault in any respect. Am. St. Rep. 116, are cited. That the wan*** In either of the cases we have pointed tonness charged must proximately cause the out as of possible finding under the evidence, injury for which suit is brought is supported the operation of the motorcycle, whether neg-by B. R., L. & P. Co. v. Drennen, 175 Ala. ligent or not, must be held to have been the 338, 345, 346, 57 South. 876, Ann. Cas. 1914C, sole proximate cause of the accident. Birming-1037; Shepard v. L. & N. R. Co., 200 Ala. 524, ham Railway Co. v. Ely, 183 Ala. 382, 62 South. 76 South, 850, and B. R. L. & P. Co. v. Cock 816." In B. S. R. Co. v. Harrison, 203 Ala. 284, rum, 179 Ala. 372, 60 South, 304. [8] It may be urged, in justification of the 286, 291, 82 South. 534, the issues formed by giving of these charges, that before the jury the pleadings were simple and subsequent might return a verdict for defendants under negligence counts and counts of wanton and instructions therein contained (1) they must willful or intentional conduct and wrong, ascertain and be reasonably satisfied from special pleas of contributory negligence to the evidence that there was no subsequent appropriate counts, and the general issue negligence or wanton conduct of defendants' pleaded to all counts of the complaint. agent that proximately contributed to the inCharge 10, given for defendant, was a "sole juries for which the suit is brought, and proximate cause" charge to which plaintiff from this lack of subsequent negligence and replied with explanatory charges (1, 2, and 3) of wantonness (2) must find that the neglias to the meaning of the word "sole"-mean-gent act of plaintiff's driver, in driving the ing "unaccompanied by any negligence on the automobile onto or in close proximity to the part of the defendant, its agents or serv- car track, was the "sole proximate cause" ants." Charge 10 was treated as susceptible of the automobile being struck and producing of two constructions, and, indulging that con- the immediate consequent injuries and damstruction in favor of the ruling of the court ages for which the suit was brought. The in giving the charge, the explanatory charg- sufficient answer to this is that in arriving es permitted to be given for plaintiff were at a verdict under such instructions and the respective issues of negligence and wantonjustified. ness, the jury would be required to consider the initial negligence of plaintiff's driver in the premises, and in so doing, to all practicable purposes, that initial negligence will be made a bar to the recovery under the subsequent negligence and wanton counts. The initial negligence of plaintiff's driver may not be a bar to a recovery for defendants' subsequent negligence nor to their wanton act or omission. There was error in giving the "sole proximate cause" charges. Appellees' counsel frankly state that these charges are "not based on contributory negligence," but "upon the facts provable under the general issue"; that the negligence of the plaintiff's driver was the sole proximate cause of the accident, and not the negligence or wantonness of defendants' operator on the street car. [7] It is established in this jurisdiction that there can be no plea of contributory negligence to a count charging wantonness, or a willful injury. L. & N. R. R. Co. v. Watson, 90 Ala. 68, 8 South. 249; Tanner's Executor v. L. & N. R. R. Co., 60 Ala. 621; Cook, Adm'r, v. Cent. R. R. Co., 67 Ala. 533; Ga. Pac. Ry. Co. v. O'Shields, 90 Ala. 29, 8 South. 248; A. G. S. R. R. Co. v. Frazier, 93 Ala. 45, 9 South. 303, 30 Am. St. Rep. 28. Appellees' counsel do not controvert this well-recognized rule of pleading, yet they say: Defendants' given charge 14 is justified by Sington v. B. R., L. & P. Co., 200 Ala. 282, 285, 76 South. 48, and Schneier v. Mobile L. & R. Co., 146 Ala. 347, 40 South, 761. [9] Charge 9 was properly given. It hypothesized the fact that the motorman of the street car was properly operating the same, and that he had the right to presume that an adult driver of an automobile approaching the street railway track for the purpose of crossing would look for approaching cars "Appellant contends that the effect of the before entering thereon, until it becomes charges were to preclude a consideration by the jury of the charge of wantonness. Before "reasonably apparent" to the motorman to the plaintiff could recover on a count of wan- the contrary from the conduct of such autotonness on the part of defendants' agent, it mobile driver. There was no error in giving must have been shown that such wantonness the charge. Schmidt v. Mobile Light & R. proximately contributed to plaintiff's injuries. Co., 204 Ala. 694, 87 South. 181; Anniston |