[Montgomery Street Railway v. Rice.] charges the jury that if they believe the evidence in this case they will find a verdict for the defendant." 2. "The court charges the jury that if they believe the evidence in this case, they should not find a verdict under the 3d count of this complaint." 3. "The court charges the jury that there is no evidence in this case of any wilful or wanton conduct on the part of the defendant, or its agents or servants, or employees in charge of the car, which collided with plaintiff's mule." 4. "The motorman had the right to assume, on approaching Procter street, that travellers on foot or in vehicles would look and listen for approaching cars before attempting to cross the track, and this fact you may look to in determining whether or not the motorman was guilty of wilful or wanton wrong." 5. "The court charges the jury that if you believe from the evidence that the car was not being run faster than five or six miles an hour, and that after the motorman discovered the peril of the mule he put on the brakes and tried to stop the car but was unable to do so before the injury happened, then there can be no recovery in this case." 6. "If you believe from the evidence that the car was being run at the rate of five or six miles an hour, then this would not warrant a verdict against the defendant for wilful or wanton wrong." 7. "The court charges the jury that before a party can be said to be guilty of wilful or wanton conduct, it must be shown that the person charged therewith was conscious of his conduct, and conscious from his knowledge of existing conditions that injury would likely or probably result from his conduct, and that with reckless indifference to consequences, he consciously and intentionally did some wrongful act, or omitted some known duty which produced the injury." The defendant severally excepted to the refusal by the court of the foregoing charges, and the action of the court in this respect is assigned as error. STEINER, CRUM & WEIL, for appellant. HILL, HILL & WHITING, contra. [Montgomery Street Railway v. Rice.] ANDERSON, J.-The trial court charged out all of the counts of the complaint except number 3, which charges a willful or wanton act. Under the evidence, although there was a conflict as to the rate of speed the car was going, and as to the motorman's knowledge of the surroundings, the trial court properly left it to the jury to determine, whether or not defendant was guilty of a wanton or willful wrong. M. & C. R. R. v. Martin, 117 Ala. 367; L. & N. R. R. Co. v. Webb, 97 Ala. 314. Charge 4 was properly refused. It singles out a fact upon which it is hypothesized, and seeks to direct special attention to the evidence, tending to show that phase of the defense, and give it undue prominence. We have heretofore observed, more than once, that charges of this character, assuming that the jury may look to this fact or may consider that fact, or are unauthorized to infer certain formulative conclusions from the evidence, and especially from specific parts of it, are bad.—E. T. V. & G. R. R. v. Thompson, 94 Ala. 636; Snyder v. Burke, 84 Ala. 53; Hawes v. State, 88 Ala. 37; Salin v. State, 89 Ala. 56. Charges 5 and 6 are bad and were properly overruled. We cannot as a matter of law, say that the defendant was not guilty, if the car was not going faster than 5, 6 or 7 miles an hour at such a crossing as is described by the evidence. It was a question for the jury; besides the charges do not attempt to fix the speed of the car at the time of the injury. The car may have been running at the rate of 5. 6 or 7 miles an hour, during the day, yet may have been running much faster when the injury was inflicted. The 8th charge has often received the condemnation of this court. It is argumentative and also calls upon the trial court, to declare to the jury, that there is no evidence of a particular fact.-Jefferson v. State, 110 Ala. 89. Charges 7 asserts the law, and for its refusal, the judgment of the court must be reversed.-L. & N. R. R. Co. v. Orr, 121 Ala. 489; M & C. R. R. v. Martin, supra. Reversed and remanded. MCCLELLAN, C. J., TYSON and SIMPSON, J.J., concur [Hoffman v. Milner.] Hoffman v. Milner. Bill in Equity to Foreclose Mortgage. 1. Aroitration; conclusiveness of award; usury.-Where the question of indebtedness between two parties is submitted by agreement of the parties to arbitrators and one of the stipulations of the submission was that legal interest should be computed upon the items of indebtedness found, from the dates of maturity, and in accordance with such submission an award is made by the arbitrators ascertaining the amount to be due from one of the parties, for which notes are given, which are secured by a mortgage, if upon default being made in the payment of the notes, a bill is filed to foreclose the mortgage, the plea filed by the debtor mortgagor to such bill, alleging that there were numerous items of usury included in the finding and award of the arbitrators presents no defense to the maintenance of such bill; the issue of usury vel non having become foreclosed and concluded by the award. APPEAL from Chancery Court of Tallapoosa. The bill in this case was filed by the appellant Walter Hoffman against the appellee, Elbert Milner. The purposes of the bill and the facts of the case necessary to an understanding of the decision are sufficiently stated in the opinion. The complainant excepted to the plea interposed by the defendant upon the ground that it was insufficient in that the amount alleged to be due was ascertained by the award of the arbitrators, and that the award was conclusive. On the submission of the cause upon the exception to the sufficiency of the plea, the chancellor rendered a decree overruling the exceptions, and holding that the plea was sufficient. From this decree the complainant appeals and assigns the rendition thereof as error. HOUSTON & POWER, T. L. BULGER and SORRELL & SORRELL, for appellant.—Cited Lee v. Sims, 65 Ala. 248-254; Curry v. Davis, 44 Ala. 281;Carlisle et al. v. Barker, 57 [Hoffman v. Milner.] Ala. 257; Bell v. Lawrence, Admr., 51 Ala. 160; Adams v. McKenzie, 18 Ala. 698; 8 Cyc. 530-h.. No counsel marked as appearing for appellee. MCCLELLAN, C. J.-The bill and its exhibits show that Hoffman and Milner submitted the question of the latter's indebtedness to the former and the amount of it to arbitrators, and that one stipulation of the submission was that legal interest should be computed upon the items of indebtedness found, from the dates of maturity. It is further made to appear that the arbitrators executed the submission, and found that Milaer was indebted to Hoffman in a sum certain. By the terms of the arbitration agreement Milner was to give his notes for the amount found due in five installments payable on a certain day each year for five years, and to secure these notes he was to execute a mortgage on certain lands. These notes and this mortgage were duly executed by Milner. Another stipulation of the agreement was that Hoffman was to pay the costs of a pending suit involving the amount of this indebtedness, and to pay Milner one hundred and forty-two dollars in money. Both these payments were seasonably made by Hoffman, Milner, on the other hand, paid the first of the notes falling due. Defaulting in the other payments, Hoffman filed this bill to foreclose the mortgage and collect the amounts evidenced by the four remaining notes. Milner interposed a plea of usury to the bill alleging that numerous items of usury charged on the several items of the original debt were taken into account by the arbitrators, and carried into their finding and constitute in part, or in whole the balance of indebtedness which they found and for which the notes and mortgage were given. We are of opinion this is a bad plea. The issue of usury vel non was foreclosed by the award. By the terms of the submission, usury was to be excluded from the finding. The right to adduce evidence to the elimination of usurious charges and claims was secured to Milner. He had the opportunity to exercise this right. If, with or without evidence upon his part, the arbitrators included such charges in their award, he had his remedy [Louisville & Nashville R. R. Co. v. Pearce.] for the correction of this error by appeal under section 522 of the Code. No appeal having been taken, and the integrity of the award not having been assailed in any other direct proceeding, if there be any available, it must stand as a final ascertainment and declaration of the indebtedness upon the same footing and having the same qualities of conclusiveness against the defense of usury as a judgment of a competent court for the amount of the indebtedness: To an action on such judgment usury could not be pleaded, and by the same token it cannot be pleaded to this action on the award made by the arbitrators. Wilbourn v. Hurt, (Ala.) 36 So. Rep. 768. The chancellor erred in holding the plea sufficient. The decree must be reversed; and it will be here decreed that the plea is insufficient. Reversed and rendered. HARALSON, DOWDELL and DENSON, J.J., concurring. Louisville & Nashville R. R. Co. Action against Railroad Company to Recover Damages for Killing a Horse and Destroying Wagon and Harness. 1. Evidence; when statement not the conclusion of witness.—In an action against a railroad company to recover damages for alleged negligent killing of a horse, where the owner testifies that he visited the place of the accident and saw marks on the ground indicating the horse had been dragged, and this statement is, on motion of defendant, excluded, the further question propounded to the witness as to "How great a distance had this something been pushed or dragged along the track?" is not subject to the objection that it calls for the conclusion of the witness and for incompetent testimony. 2. Contributory negligence; duty of person approaching track of railway. It is the duty of a person approaching the tracks of a railway for the purpose of crossing it, to stop and look, and if necessary, to listen for approaching trains; and where |