I think that this case should be reversed upon a point which seems not to have been considered in either of the foregoing opinions.
The complaint, as finally amended, contained two counts, 1 and 2. Count 2 was charged out both by a given written charge and the oral instructions by the trial court. The jury was also instructed by the defendant's given charge (c) that the plaintiff could not recover under count 1 of the amended complaint on account of any negligence on the part of the engineer. This, in effect, eliminated the engineer from the case and the verdict could only be referable to the negligence of the fireman or some other servant charged with the operation of the train.
The defendant, by its refused written charge (d), sought to exonerate the fireman *Page 654 of any negligence, under count 1 of the amended complaint, and this charge should have been given, and its refusal was argued and insisted upon as error in appellant's brief. See page 58.
The only theory upon which the fireman could possibly be charged with negligence would be for a failure to keep a lookout. It may be questionable, under ordinary conditions, whether the engineer had to keep a constant lookout at this point, and the opinion of THOMAS, J., proceeds upon the theory that this should have been done because of special circumstances, that is, the engineer had warning and the train was running against the traffic, that is, going north on a south-bound track. This, however, did not necessarily impose the duty upon the fireman of keeping a lookout.
In the first place, the engineer is in charge of the engine, and the duty of the fireman as to keeping a watch is, in a sense, secondary and he is not called upon to do so unless he knows that the engineer is not doing so, or cannot do so, even at places where a lookout is required, and there is nothing in the record to show that the fireman was required to keep a lookout at this point, or that the engineer was not doing so or could not do so. While the opinion of THOMAS, J., attaches much importance to a signal given the engineer and the meaning and importance of same in connection with the fact that the train was running against traffic, that is, going north on the south-bound tracks, there is not the slightest evidence that the fireman saw the signal or had any knowledge whatever of same. It also appears that the engineer blew the whistle in recognition of the signal and, if such was the case, this was, in a sense, a notice to the fireman that the engineer was on the lookout.
As to whether or not the trial court properly eliminated any negligence on the part of the engineer, we are not called upon to decide, as it was favorable to the appellant and, having removed this issue from the case, it was highly important that the trial court should have given the defendant's requested charge (d) as the proof fails to show any negligence on the part of the fireman and, with that of the engineer eliminated, the only rational conclusion is that the verdict for the plaintiff was based on the conduct of the fireman.
On the other hand, had the engineer not been charged out of the case, the defendant was still entitled to have his requested charge (d) given as the complaint did not confine the negligence to the engineer, but to the defendant's officers and servants generally and which included the fireman.
I think that the rehearing should be granted and the judgment of affirmance set aside and that the cause should be reversed and remanded.
BROWN, J., while adhering to his original opinion, also concurs in these views.