and formation of the abutting land, its liability to overflows, and their probable extent and effect. They should be so constructed as not to be subject to the risks and perils arising from rainfalls known by experience to be incident to the particular section of the country, though rarely occurring, or which competent and skilled engineers should reasonably anticipate. But they are not bound to provide against unusual or extraordinary floods, such as have never been known to occur previously, and which could not have reasonably been foreseen by competent and skillful persons.

Pitts., Fort Wayne, and Chic. R'y Co. v. Gilleland, 56 Pa. St 445, 94 Am. Dec. 98, was an action for an injury caused by the continuance of a culvert, which, it was alleged, was so negligently constructed as not to furnish sufficient vent for all the water flowing down the channel of the stream. After substantially saying that in such case proper engineering should observe the size of the stream, the character of its channel, and the declivity of the circumjacent territory which forms the water-shed, and supply the means of avoiding the injury which would result from locking up the natural flow or obstructing its passage so as to cause a reflux in the times of ordinary high water, Agnew, J., says: "Beyond this, prudent circumspection cannot be expected to look, and there is, therefore, no liability for extraordinary floods, those unexpected visitations whose comings are not foreshadowed by the usual course of nature, and must be laid to the account of Providence, whose dealings, though they may afflict, wrong no one." The evidence clearly establishes that the flood was not only unusual and extraordinary, but greater and more destructive than had ever before happened in the memory of the inhabitants, a flood which human ken could not have foreseen, nor the greatest caution and prudence could have reasonably anticipated. There is no liability on defendant for not having provided against the dangers and consequences of such a flood: International etc. R. R. Co. v. Halloren, 3 Am. & Eng. R. R. Cas. 343; H. & T. Cen. R'y Co. v. Fowler, 8 Id. 504; 12 Am. & Eng. R. R. Cas. 196; Patterson on Railway Accident Law, secs. 30, 31.

Not controverting this rule, plaintiff contends that there was negligence on the part of the company in the construction and maintenance of the foundations of the trestle, which concurred with the flood in producing the injury to her intestate. Notwithstanding the flood may have been unusual and unpre

cedented, if the insufficient construction of the trestle was the proximate and real producing cause of the injury, the defendant would be liable; but if the flood was of such overpowering and destructive character as to produce the injury, apart from and independent of the particular negligence alleged in constructing the foundations of the trestle, there is no liability, though there may have existed some negligence in their construction and maintenance: Baltimore etc. R. R. Co. v. S. S. S. Dist., 96 Pa. St. 65; 42 Am. Rep. 529. The true test is, Was the trestle so negligently constructed as to be insufficient and insecure in cases of usual and ordinary floods incident to that section? If it was sufficient and safe at such times, though insufficient to stand against extraordinary floods, negligence in its construction cannot be regarded as the real producing cause of the injury. The evidence shows that the trestle had been constructed about fifteen years previously, in the manner in which such trestles are generally constructed by the best managed railroad companies, and had stood, during all that period, on the same or similar foundations, affording safe passage for engines and trains without accident or objection; and nothing is shown to have occurred which indicated danger in its continuance. On these facts the court should have instructed the jury that there is no ground to impute negligence to defendant in its construction or maintenance.

The plaintiff, however, further insists that the negligence of the watchman at the bridge in giving the safety instead of the danger signal, when the train was approaching the bridge from the west, concurred with the flood in causing the injury. The contention is based on subdivision 4 of section 2590 of the Code of 1886, which provides that the employer is liable to answer in damages to the employee, "when such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has the charge or control of any signal, points, locomotive, engine, switch, car, or train upon a railway, or of any part of the track of a railway." On the question of fact, whether any signal was given, the evidence is in conflict. Railroad companies have authority, and, it may be said generally, it is their duty, to prescribe suitable rules and regulations for the direction and management of their trains for the purpose of protecting their employees, as well as passengers. The rules provided by defendant were introduced in evidence, and prescribe the manner in which signals must be given, to signify whether

the train shall move forward, stop, or move backward; and also that the person of the watchman must be kept in sight, as a signal to approaching trains that all is right. There is also evidence that the signal of safety must be given at the end of the bridge which is being approached by the train. Unless a signal is given in accordance with the rules of the company, a conductor or engineer is not authorized to rely on it; and if he does, and injury ensues to him in consequence thereof, there being no other act of negligence contributing to produce it, the negligence which renders the company liable under the fourth subdivision of section 2590 cannot be imputed to the company.

We have heretofore held that the "employer's act" does not take from the employer the defense of contributory negligence: Mobile & B. R'y Co. v. Holborn, 84 Ala. 133. The statute expressly declares that the employer is not liable, if the employee knew of the defect or negligence, and failed, in a reasonable time, to give information thereof to the employer, or to some person superior to himself in the employment of the employer, unless he was aware that the employer, or such superior, already knew of such defect or negligence. In this case there was neither time nor opportunity in which to give the defendant notice, and the company could not have known of the defect or negligence, no room for the operation of this provision of the statute. No person superior to plaintiff's intestate in the employment of defendant is shown to have been present. He was both conductor and engineer of his train, directed its management, and controlled its movements. He was under no orders from any superior to move his train from the west to the east side of the river on that evening. His attempt to cross the bridge was of his own volition, no doubt prompted to do so by a desire to be, on the next morning, at the place most convenient to prosecute the work in which he was specially engaged, repairing the trestles which had been washed out on either side of the river. The evidence tends to show that he had examined the bridge during the day, and knew, or should have known, that the water was rapidly rising. If he knew the manner in which the trestle was constructed, the unprecedented character of the flood, the imminent danger to the trestle by the overflow of the river, and the rapid rising of the water, and with such knowledge and under such surroundings attempted, without compulsion or necessity, the hazardous passage of the bridge, his negli

gence sufficiently contributed to his injury to defeat a recovery by plaintiff.

Section 2591 authorizes the personal representative to maintain an action if the injury results in the death of the employee, and directs the distribution of the recovery. The statute does not prescribe or fix the measure of damages, neither are they submitted to the arbitrary discretion of the jury. It has no punitive purpose, and the common-law rules as the measure of damages are applicable. It is wholly unlike, in its objects and purposes, the statute of February 5, 1872, which was intended to prevent homicide. As pecuniary gain from a continuance of life constitutes an element of damage in this class of cases, the court should have admitted the evidence that plaintiff's intestate was afflicted with a pneumonic complaint which affected the probable continuance of life. There is no evidence tending to prove, or from which could be inferred, willful, wanton, or reckless negligence on the part of the company. The charge requested by defendant, that on the facts punitive or vindictive damages cannot be recovered, should have been given: Ala. G. S. R. R. Co. v. Arnold, 84 Ala. 159; 5 Am. St. Rep. 354.

We have considered and endeavored to state the principles which should govern the case on another trial, without applying them specially to the several rulings of the court, deeming such application unnecessary; and, as there was no opportunity to give the defendant information of the defect or negligence, we regard it unnecessary to consider the demurrer based on the ground that the complaint omits to aver such facts.

Reversed and remanded.

HARMLESS ERROR. There will be no reversal for harmless, immaterial errors which work no prejudice to the complainant: Blanchard v. Lake Shore etc. R'y Co., 126 Ill. 416; 9 Am. St. Rep. 630, and note 638; Stutz v. Chicago etc. R'y Co., 73 Wis. 147; 9 Am. St. Rep. 769, and note 778; Masonic Mut. Ben. Soc. v. Lackland, 97 Mo. 137; 10 Am. St. Rep. 298, and note; Sweeny v. Schultes, 19 Nev. 53. A party who is not harmed by the refusal of the trial court to strike out parts of a special verdict, on the ground that they embrace more than conclusions of law, cannot predicate available error on such ruling: Louisville etc. R'y Co. v. Flanagan, 113 Ind. 488.

RAILWAYS ARE NOT LIABLE FOR UNFORESEEN ACCIDENTS: Wabash etc. R'y Co. v. Locke, 112 Ind. 404; 2 Am. St. Rep. 193; Laflin v. Buffalo etc. R. R. Co., 106 N. Y. 136; 60 Am. Rep. 433. The company is not bound to keep its premises absolutely safe, and is never liable for accidents which happen by reason of a want of ordinary care on the part of the person injured: Wabash etc. R'y Co. v. Locke, supra.

BRIDGES. - Where a foot-passenger, while crossing a long and narrow county bridge in a large city, was caught by the wheel of a wagon drawn by a team of runaway horses, and injured, the injury occurring on the foot-way, which was narrow, and not separated from the wagon-road by any guard or rail, in an action against the county for such injury so sustained it was held that it was unreasonable to suppose that such an occurrence could be foreseen by the authorities as the result of a failure to erect guards, and therefore the county was not liable: Lehigh County v. Hoffort, 116 Pa. St. 119; 2 Am. St. Rep. 587, and note 591. A municipality is not liable because one of its bridges is not absolutely safe; and where a bridge breaks down under an unreasonable and extraordinary load, which reasonable care and prudence could not have anticipated, the municipality is not liable: Wilson v. Town of Granby, 47 Conn. 59; 36 Am. Rep. 51. Where a railway bridge is so negligently constructed across a river as to form an unlawful obstruction, and become a nuisance by causing overflows, no right of action accrues to the land-owner till he sustains actual injury thereby: Omaha etc. R. R. Co. v. Standen, 22 Neb. 343.

RAILWAYS-CONSTRUCTION OF ROAD. — A railroad company, in constructing its road and works, is bound to bring to their execution the engineering knowledge and skill ordinarily known and practiced in such works: Pittsburgh etc. R. R. Co. v. Gilleland, 56 Pa. St. 445; 95 Am. Dec. 98. A railway company is not liable for so constructing a culvert that it will not pass an extraordinary flood: Id. A railway company in constructing its bridges, calverts, and embankments must provide against such damages as might be reasonably anticipated from the overflow of a stream, but the company will not be guilty of that culpable negligence that would make it responsible in damages, if it failed to provide against such extraordinary floods as could not have been reasonably foreseen by men possessing ordinary engineering skill and capacity required in the construction of railroads: Railway Co. v. Pool, 70 Tex. 713. A railroad company in constructing its road is not bound to provide against an unprecedented flood, but must provide against ordinary storms: McPherson v. St. Louis etc. R'y Co., 97 Mo. 253; Sherlock v. Louisville et. R'y Co., 115 Ind. 22.

PERSONAL INJURIES — MEASURE OF DAMAGES: See Houston etc. R'y Co. v. Boozer, 70 Tex. 530; 8 Am. St. Rep. 615, and note 618; Alabama etc. R. R. Co. v. Yarbrough, 83 Ala. 238; 3 Am. St. Rep. 715, and cases collected in note 718; Louisville etc. R. R. Co. v. Stacker, 86 Tenn. 343; 6 Am. St. Rep. 840, and note 847; Louisville etc. R. R. Co. v. Brooks, 83 Ky. 129; 4 Am. St. Rep. 135, and note; Clapp v. Minneapolis etc. R'y Co., 36 Minn. 6; 1 Am. St. Rep. 629, and note 632; note to Stutz v. Chicago etc. R'y Co., 9 Am. St. Rep. 778; Railway Co. v. Silliphant, 70 Tex. 625.

DAMAGES, EXEMPLARY, WHEN and under WHAT CIRCUMSTANCES ARE RECOVERABLE: See Stutz v. Chicago etc. R'y Co., 73 Wis. 147; 9 Am. St. Rep. 769, and recent cases cited in note thereto 777; Pittsburgh etc. R. R. Co. v. Lyon, 123 Pa. St. 140; 10 Am. St. Rep. 517, and note. Where it is sought to recover such damages as are not usual and natural as the consequences of the wrongful act complained of, such damages must be specifically set forth: City of Pueblo v. Griffin, 10 Col. 366. Exemplary damages cannot be recov ered in a civil action, although the tort complained of is willful, and it is not punishable criminally: Greely etc. R'y Co. v. Yeager, 11 Id. 345. Liability for punitive damages arises from the wrongful motive of the defendant, and where this wrongful motive is not inherent in the offense which fixes his liaAM. ST. REP., VOL. XI.-5