The argument of the plaintiff’s counsel on the rehearing was addressed to three alleged errors made in the decision on the former hearing:
1. It was contended that the Court erred in treating the plaintiff as if he were a trespasser on the track of the defendant, instead of as an employee.
2. That the speed of the train was an important factor in the case, and that we gave it ho consideration.
3. That the rules which were prescribed by the company for the operation and regulation of its trains in respect to its *617employees were not considered for any purpose in the former opinion.
It was argued that if those errors bad not been made, the erroneous conclusion which the Court arrived at could not have been reached. For all practical purposes, the facts necessary for a proper consideration of the case are set out in the former opinion. 130 N. C., 344.
In the discussion which is to follow, we will leave the first alleged error to be treated with the question of the defendant’s negligence.
As to the second assignment of error, concerning the speed of the engine in connection with the plaintiff’s hurt, it is sufficient to say that on the trial below it bad m> significance. Tbe defendant’s fourth prayer for instructions was as to its right to run its engine, so far as the plaintiff was concerned, at any rate of speed it chose. His Honor read the prayer to the jury, and said, “There was no evidence that the rate of speed caused the injury, and therefore the rate of speed will be excluded from the consideration of the jury as evidence of negligence on the first issue.”
In reference to the third alleged error on tbe part of this Court — that we did not give consideration to tbe rules of tbe company — it is sufficient to say that in tbe charge to tbe jury, bis Honor neither recited these rules, nor made any reference to them as bearing upon the plaintiff’s rights or the defendant’s negligence, and there was nothing for us to consider about them.
The only question, then, which remains' for consideration, is whether or not the Court was in error in the conclusion it arrived at in the former opinion.
That part of the charge of his Honor which we thought was erroneous is set out in full in the former opinion, and it is not, therefore, necessary to insert it here.
The plaintiff was not employed to do work which required *618bim to go upon the track of the defendant company, and, so-far as the evidence discloses, he did not put his foot upon it. He was employed to do the simplest of all mechanical work— to paint some switch targets in the defendant’s shifting yard at Charlotte. The targets were four feet from the railroad, and the position was perfectly safe if the plaintiff had remained at the outside of the target. The track was perfectly straight for about sis hundred feet, and there were no- obstructions of any kind for that distance along the way. The plaintiff placed the paint bucket between the rail and his feet, and in the act of a second, stooping over to dip his brush in the paint, his head was stricken by a passing engine, and he was badly hurt. lie said that there was no signal given by bell or whistle. Under these facts, we are of the opinion, as we were when the case was before us last, that the engineer had a right to assume that the plaintiff would have stepped out of danger if he had peradventure gotten too near the track, or that he, the plaintiff, would not put his head in danger by leaning over to dip his brush in the paint as the engine was passing by. It seems to us no reasonable man-could have thought that the plaintiff, under the circumstances of this case, would need any caution or signal.
This view of the conduct of the defendant’s engineer is fully sustained in Aerkfetz v. Humphries, 145 U. S., 418. There, the plaintiff was a repairer of tracks in the switch-yard of the defendant. The tracks were straight and without obstructions in either direction. He was at work at the-time of the accident in the yard when the switch engine,, pushing two cars, moved slowly along the track upon which he was at work, the speed of the engine being that of a man-walking. The plaintiff stood with his back to the approaching cars, engaged in his work, without looking backward or watching for the engine, until he was run over by the first car. The plaintiff there was an experienced man in work *619about the yard, as was the plaintiff in the ease before us. They both knew' all about the shifting of cars and the general work about switch yards. The differences in the main facts of the two cases are that, in the case of Aerkfetz v. Humphries, supra, the engine was moving at a slower speed than was the engine in our case, and the plaintiff, there, was engaged in working on the track, while in the present case the plaintiff was not employed to work on the track. The speed of the engine, as we have seen, does not have any bearing, as we have pointed out. The Court decided in Aerhfetz v. Humphries that the defendant was not negligent. It is not necessary for us to go so far as the Court went in that case; and we do not undertake to decide that there would be no negligence on the part of a railroad company for one of its engineers, without signal or warning, to run down its' employees who are engaged in work on its tracks. When such a case is presented, then will be the proper time to consider it.
The counsel of the plaintiff referred us to numerous decisions from the Courts' of other States, in which it has been held to be negligence on the part of railroad companies to run over with their engines or cars their employees while engaged in work upon their tracks, without having given proper warnings, that, is, that the employees have the right to expect warning. They are not cases like the one before us. The petition to rehear is dismissed.
Petition Dismissed.