OPINION ON MOTION FOR REHEARING.
Fletcher, Sp. J.6. When pleadings aided by The ground for recovery alleged in the. complaint in this case is that “ the defendant so carelessly and negligently managed and operated its train and cars that they passed over the body of the deceased, and thereby, without the fault of the deceased, he was killed.”
At the trial, evidence was introduced without objection to show on behalf of the plaintiff that the railway company had failed to afford a proper and safe place for the deceased to work, and had not exercised proper care in affording him protection against the carelessness of his fellow-servants. The company introduced evidence on the same issue. In fact, the burden of the evidence in the case was upon this issue. It was made one of the leading issues on the proof before the jury. The facts thus developed were undisputed, and the court gave instructions on both sides as to the law bearing upon the same.
Counsel for appellant now insist, in an earnest and .vigorous argument, that this court erred in considering on appeal the issue thus made, and that it is not proper to affirm the judgment on this issue.
The point was directly ruled against the contention of counsel in the case of St. L., I. M. & S. Ry. Co. v. Harper, 44 Ark., 527, where the court say: “The appellee, while in the discharge of his duty as watchman for the railroad, in its yards at Texarkana, was injured by the explosion of the boiler of one of the company’s locomotives. Critically considered his complaint charges an injury to a servant by a. co-servant, and nothing more. It is the well established rule of this court that the master cannot be made to respond in damages for this. The defendant, ’however, made no objection to the sufficiency of the complaint, but denied knowledge of defects in the exploded engine, as well as a want of care on its part, and permitted the plaintiff to introduce evidence tending to show that the boiler of the engine-which caused the injury was defective, and that the agents of the company who were charged with the duty of repairing it ought to have known of the defects. After verdict for the plaintiff, the complaint may be considered as amended to conform to this proof, and rhe defendant can take nothing by the motion in arrest of judgment.”
Other questions are presented in the motion and argument for reconsideration, all of which were either directly or indirectly considered in the opinion in this case.
The motion to reconsider is overruled.