On Petition for Rehearing.
Hackney, O. J.Counsel for the appellee urge the granting of their petition, insisting that we erred in *61considering the evidence; in determining the sufficiency of the facts specially found to withstand appellant’s motion for judgment; that we should have held the complaint bad; that we should have directed a new trial; that we overlooked the law that the fellow-servant rule is no exemption where the negligence resulting in injury is the combined act of the master and the fellow-servant; that we failed to observe the rule which requires the master to supply his servant with a safe place to work, and that we were in error in holding upon the facts specially found, that the proximate cause of the injury,was the fault of those operating train No. 19.
We are satisfied that upon a second reading of the original opinion counsel will observe that in passing upon the sufficiency of the facts found specially we were careful to point out and discriminate between the facts so found and certain rules proven without question. The rules so proven had their place in the opinion to demonstrate the entire absence of a cause of action, excusing our refusal to pass upon, and the futility of the granting of, the motion for a new trial. Combining the facts found with those which were omitted from the special verdict, it was made clear that, though much, stronger than the facts pleaded in the complaint, the appellee had no right of recovery. This course further illustrated the propriety of passing upon that question in the case which should put at rest a fruitless litigation.
That the fellow-servant rule has no application is urged upon the false premise that the fellow-servant’s negligence combined with that of which the train dispatcher was supposed to have been guilty. We made clear, we think, the proposition that the special verdict did not find either that the train dispatcher was negligent or that the company knew him to be an unskilled or neg*62ligent servant. If he stood in the relation of a vice principal we were not at liberty to supply an omission in the verdict by an inference that he had been negligent. If we had been permitted to supply any fact, it would have been shown, as incidentally disclosed by reference to the evidence, that he was not negligent. The duty devolving upon the company to supply the decedent with a safe place to work was not and is not a question in the case. The déath of the engineer was due, not to defects in-place or appliance, but directly to the negligence of a fellow-servant who disregarded the general rules of his employer, failed to observe them in connection with his special order, and, as the jury found, ran past a station where he should have taken a side track and waited for No. 20 to pass in safety. In this view of the question the negligence of the fellow-servant was the only cause of the injury and necessarily the immediate cause. The discussion of counsel seems to rest upon the error of supposing that the special verdict, like a general verdict, should be supported by every reasonable intendment and hypothesis upon which the conclusion of liability could be supported. That .such is’ not the rule we showed very clearly in the original opinion. Having again considered the questions in the case, and feeling satisfied with our conclusion, the petition is overruled.
Filed December 13, 1895. Note. — On. the question whether a train dispatcher is a fellow-servant of trainmen, the authorities are found in a note to Little Rock & M. R. Co. Burry (Ark), 25 L. R. A. 386).