dissenting.
There was evidence tending to show that when appellant backed its train into Hickory street the caboose and one or two freight cars attached to it were not coupled to the rest of the train, and were therefore not under the control of the brakemen (who were near the head of the train), nor of the engineer. Ho employe of appellant was at or near the brakes on said caboose, and one or two freight cars attached to it. If the caboose and one or two freight cars next to it Avere thus “ kicked ” into the street and upon the street car track, with no ¿me to control or stop them, then appellant Avas, in my judgment, liable in this action. There Avas also testimony tending to show said cars were not thus detached, but had been coupled to the rest of the train before it Avas backed up. I differ from the majority of the court as to the weight of the testimony upon this subject. Considering the place where each witness was at the time the noise of the collision was heard, his distance from the collision, the quickness with Avhich he got to the AArreck, his testimony as to what he then saw as to whether the rear cars Avere or were not then coupled to the rest of the train, the inability of several of the trainmen to testify positively that the rear cars were uncoupled by the train hands shortly after the collision, and various concessions made by some of the Avitnesses on cross-examination, I have been brought to the conclusion that the state of the evidence as to whether the rear cars were thus uncoupled when they were driven back upon the street was such that the finding of the jury thereon should not be disturbed.
If appellant and the Streator Eailway Company were each legally responsible for the death of appellee’s intestate, then appellee had the right to sue each, either separately or jointly. If this suit had been originally brought against appellant alone, substantially all the evidence which was introduced at the trial below would have been competent, and must have created just the same feeling toward appellant in the minds of the jury that it did create at the trial now under review, no less and no more. I am unable, therefore, to see how the presence of the Streator Eailway Company as a co-defendant till near the close of the trial, could have prejudiced appellant.