dissenting: I concur with my brethren that there was evidence of negligence, upon the part of the engineer, in stopping the train while the conductor was on top of the cars, sufficient to take the case to the jury, but it being admitted by this Court that the condition of the brake wheel had nothing to do with the injury, I think that, in all fairness, a new trial should be ordered, because the Judge plainly submitted that feature of the case to the jury.
The plaintiff, conductor of a freight train, failing to signal the engineer from the caboose, to stop, went out on top of the *432cars for the purpose of signalling from a place where his signals could be seen. There is' evidence tending to prove that the engineer, having knowledge .of'the plaintiff conductor’s position, was guilty of negligence in the suddenness and ■violence with which he applied’his air brakes, whereby he threw plaintiff off the ear to the ground, causing serious injury.
The plaintiff in falling struck the brake wheel with his ■feet and then grabbed the rim with his hands. The rod of the wheel snapped off and the plaintiff fell to the track. There was evidence tending to prove that two spokes of the wheel were out.
I understand it to be admitted by the Court, as it is undoubtedly true, that the condition of the brake wheel is not responsible, for the injury was in no way connected with it, and it was not its proximate cause. But the Court seems to regard it harmless error that his Honor submitted that feature of the case to the jury. I cannot concur in that view. It wa3 extremely prejudicial error.
The negligence of the engineer was disputed. There is evidence tending to prove that he obeyed the plaintiff’s orders to stop the freight train as well as it could be done. The defective condition of the brake wheel was placed before the jury repeatedly by the Judge, who gave it a very prominent place in stating plaintiff’s contentions, and it was so argued by counsel for plaintiff to the jury. The defendant properly 'asked the Court to instruct the jury that there is no evidence that the injury was caused by the defective brake wheel appliance. This prayer should have been given. In the complaint and in the evidence the defective brake wheel is made a distinct ground for recovery.
Instead of giving the instruction the Court charged the jury as follows: “The defendant does not deny that the ■plaintiff fell from the top of the car, on which he was standing immediately before falling, but it contends that-he was *433not thrown from the train at all, or if he was thrown from the train, that the jar or shock which threw him was not an unusual or unnecessary jolt, jar or shock. It does not deny that the plaintiff caught the brake wheel and broke it in falling, but it denies that the brake wheel was defective, and denies that the Southern Eailway Company knew or should have known anything about its being defective. It contends, further, that the brake wheel was intended as a means of applying the brakes to the caboose, and was not intended as a protection to employees of the Southern Eailway Company in discharging duties required of them on top of the train.’’
The whole charge shows that the jury might well have been misled by the manifest opinion of the Judge, pervading the whole trial, that the defective brake wheel constituted actionable negligence and was the proximate cause of plaintiff’s injury, as alleged in the complaint. •
It is impossible to tell whether the jury found the first issue for plaintiff upon the ground that the engineer was negligent in stopping the train, or because of the condition of the brake wheel. Of course, it is well known .that brake wheels are not intended to catch two hundred pound men when falling. "When plaintiff fell on it his weight snapped it off at the rod, and it would have snapped off just as it did even if every spoke had been in its place in the wheel.
I understand my brethren to admit that, if there be no negligence found except as to the absent spokes in the brake wheel, the plaintiff could not recover. The Judge and counsel for plaintiff, during the whole trial, evidently took the contrary view and regarded such defect as actionable negligence.
It will be seen, also, by reading the record, that the defendant objected repeatedly to the evidence in regard to the condition of the brake wheel as irrelevant, incompetent and pre*434judicial, and that the admission of it is excepted to and assigned as error.
Tbe jury were evidently misled plainly to defendant’s prejudice, and I think there should be a new trial for receiving incompetent evidence and for refusing the instruction asked.