Dissenting Opinion.
Howard, J.I must dissent wholly from the conclusion reached by the majority of the court in this case. If the widow of a railroad employe may not recover for his death, under circumstances such as those disclosed in the record before us, and abstracted in the principal opinion, it is difficult to conceive of a case in which she could recover.
The errors assigned on the appeal from the special to the general term of the court below were: The overruling of the motion for a new trial, the overruling of a motion for judgment on the answers of the jury to interrogatories, and the insufficiency of the complaint.
The general term reversed the judgment at special term under the first assignment or error, giving as a reason for such reversal that the court at special term had refused to give the jury the following instruction, asked by the defendant in the trial court, the appellee on this appeal: “Fourth. It is also the law that where two or more persons are ábout entering upon a railway track for the purpose of crossing over it, walking upon it, or engaging in any work thereon, and the circumstances are such that one of them only can keep a lookout *521for approaching trains or cars, then his companion or companions relying upon him, are bound to see that he discharges the duty resting upon them all, as he acts for all: and unless it be shown that all such persons have taken reasonable care to see that the vigilance required by the law is exercised, then there can be no recovery, even though the person injured is not the one who was in such situation that it was his duty to look and listen for approaching trains or cars.”
The end proposed to be attained in requesting this instruction was that the jury should be informed that if the negligence of Lichtsin, if any, contributed to the injury of Abbitt, then such negligence of Lichtsin should be attributed to Abbitt as if it were his own, and no recovery could be had from the appellee company, whether the company were guilty of negligence or not.
I do not think the instruction correctly states the law; and I do not understand that the majority of this court are of opinion that the instruction was applicable to the facts in this case, even if it could be applicable to the facts of any possible case.
When two or more persons are about to enter upon a railroad track, it is the duty of each to look and listen for approaching cars; but it is not generally true that if one of such persons neglects his duty so to look or listen, his negligence can be imputed to the others. It is usually quite enough for a person to be responsible for his own negligence, without being called upon to answer for the negligence of some one else.
As well said by Judge Mitchell, in the Town of Knightstown v. Musgrove, 116 Ind. 121, 9 Am. St. 827: “One who sustains an injury without any fault or negligence of his own, or of some one subject to his *522control or direction, or with whom he is so identified in a common enterprise, as to become responsible for the consequences of his negligent conduct, may look to any other person for compensation whose neglect of duty occasioned the injury, even though the negligence of some third person, with whom the injured person was not identified, as above, may have contributed thereto.”
It will not be said in this case, that Lichtsin was the agent of Abbitt, or subject to his control or direction. Neither was Abbitt so identified in a common enterprise with Lichtsin as to become responsible for any negligent conduct of which Lichtsin might be guilty. It would not be claimed that if some person were injured by Lichtsin’s misconduct, that the relations of Lichtsin and Abbitt were such that the injured person might recover of Abbitt. They were simply co-employes, each responsible to the common employer, but not otherwise responsible for the faults of one another.
It is, of course, true, in the case of co-employes, in relation to their employer, or aj; least, was so, at the time of this accident, that if one employe were injured by the negligence of another, there could be no recovery against the employer; for the negligence of his co-employes was one of the risks which the employe undertook as a condition of his service. But, even in such a case, if the injury should be in part due to the negligence of the employer himself, such employer could not escape liability for his own wrong, no matter what might have been the negligence of the co-employe. Rogers v. Leyden, 127 Ind. 50.
Still less could a third party, as the appellee company in this case, escape liability for its own wrongs by charging negligence against one of the co-employes of another company. Such liability could be avoided *523only by showing that the defendant company was itself not negligent, or else by the failure of the injured party to show that he was not himself negligent. See Cray v. Philadelphia, etc., R. R. Co., 23 Blatchf. 263, 24 Fed. 168, 22 Am. and Eng. R. R. Cases, 351; Perry v. Lansing, 17 Hun 34.
The gist of the instruction, as applicable to the facts of the case, if at all applicable, is as follows: Where two or more persons enter upon a railroad track for the purpose of engaging in work thereon, but the circumstances are such that only one of them can keep a lookout for approaching trains, then his companion or companions relying upon him are bound to see that he discharges the duty resting upon them all, as he acts for all.
This instruction, while by its form, apparently seeking to avoid the question of agency, yet does, in reality, imply that the persons so engaging together at work are mutual agents of one another.
I have gone carefully over all the cases cited by counsel in support of their contention in favor of the instruction, and in so far as these cases are authorities in this jurisdiction, the relation of agency was in each case shown to exist between the parties.
In Minster v. Citizens R. W. Co., 53 Mo. App. 276, cited by counsel to show distinctly “what must be regarded as a joint undertaking,” where questions of negligence are concerned, the decision was as follows: “When the negligence of a gripman of a street railway car in the operation thereof and the negligence of a third person concur in causing injury to the conductor of the car, and the gripman is under the direction and control of the conductor, his negligence will be imputed to the conductor so as to debar the latter from recovering for the injury from such third person.”
*524There is no doubt of the correctness of this holding. It has always and everywhere been held that one is responsible for the acts of his agent, done in the course of his employment, still more, as in this case, where “the gripman v^as under the direction and control of the conductor.”
In the case at bar, however, there is nothing to show that Lichtsin was under the direction or control of Abbitt.
In Puterbaugh v. Reasor, 9 Ohio St. 484, Puterbaugh intrusted one Reddick “with the possession, custody, and care of his team.” Reddick left the team and engaged in a fight with Reasor, at which time the team became frightened and ran away, and one of the horses was killed. The suit was by Puterbaugh against Reddick and Reasor for the value of the horse. The court declined to- determine the relation sustained by Puterbaugh with Reddick, but held that Puterbaugh having entrusted Reddick with his team', and the injury having resulted from the negligence of Reddick in the care of the team, Puterbaugh must look to Reddick alone for a remedy. This is certainly a question of agency. Puterbaugh having constituted Reddick the custodian of his team, cannot recover from a third party for an injury resulting from the fault of his own agent. No question as to a “common enterprise” between Puterbaugh and Reddick is considered by the court. •
Griffith v. Baltimore R. R. Co., 44 Fed. 574, which was a crossing case, is directly against the contention of counsel: “It is said, and said very truly,” declared the court in that case, “that the plaintiff would not be responsible for the negligence of her mother, who was driving. That is true, but in that event it was just as much her duty to look and listen as it was the duty of her mother, and just as much *525her duty to suggest that they stop and look and listen as it was the duty of the mother to stop and look and listen, and her duty to protest if that was not done.” This case states the true doctrine on this matter: It is the duty of each person to take due care, but neither person, unless the relation of agency exists, is responsible for the want of care on the part of the other.
The Massachusetts case, Allyn v. Boston, etc., R. R. Co., 105 Mass. 77, cited by counsel to show that a person riding in a carriage is responsible for the negligence of the driver, is itself dependent for authority upon Thorogood v. Bryan, 8 C. B. 115. The doctrine of that case has long since been repudiated in England, Mills v. Armstrong, 13 App. Cas. 1, and it has never been sanctioned by this court. Miller v. Louisville, etc., R. W. Co., 128 Ind. 97, 25 Am. St. 416. Even In Massachusetts the doctrine of Thorogood v. Bryan has been greatly modified. Randolph v. O’Riordon, 155 Mass. 331, 29 N. E. 583.
In the Texas case cited, Johnson v. Gulf, etc., R. W. Co., 2 Tex. Civ. App. 139, 21 S. W. 274, though that state is also one of the few inclined to follow the rule of Thorogood v. Bryan, the court decided simply that “If deceased was blind so as to be unable to take care of himself, and of his own volition confined himself to the care of his father, the negligence of such custodian should be imputed to him; in such case he would be his agent.”
The case of City of Joliet v. Seward, 86 Ill. 402, also turned on the question of agency.
The case of Nesbit v. Town of Garner, 75 Iowa 314, 39 N. W. 516, the remaining case relied upon by counsel, also turned on “the general doctrine that the principal is bound by the acts and conduct of his agent.” And the court adds: “If [the principal] suffers an in*526jury through the negligence of another, but to which the negligence of his servant, or agent, while engaged in the business of his employment, contributes, there can be no recovery. But the relation of principal and agent must exist in fact.”
Thus all the authorities except those based on the discredited case of Thorogood v. Bryan, relied upon by counsel, and cited to show that Abbitt and Lichtsin were engaged in a common enterprise, and each responsible for the negligence of the other, are shown on examination to be based on the relation of agency, and not upon an engagement in a common enterprise. But it is not even suggested that Lichtsin was the agent of Abbitt for any purpose, and indeed he was not.
Much has been said in the books, in a general way, as to persons engaged in a common enterprise, so that each should be responsible for the acts of all the others, but the illustrations given are few. One instance is that of a picnic party, the vehicle in which they rode being driven by one of the company. But there they had united in selecting him for that office, .and he was in effect their agent for that work, and they were consequently responsible for his negligence as driver. And see Beck v. East River Ferry Co., 6 Robt. (N. Y.) 82; also Omaha, etc., R. W. Co. v. Talbot, 48 Neb. 627, 67 N. W. 599.
Wherever it is held that one person is responsible for the acts of another, as being engaged with him in a common enterprise, it will be found that the relation of agency, express or implied, exists. What is dope by one is the work of all. This is so even in a criminal conspiracy, to which such joint enterprise is sometimes likened. The co-conspirator, the aider, abetter, accomplice, or accessory, are each engaged in doing their part toward the common wrong; and *527each of them, in a manner, calls upon every other member of the conspiracy to bring about the result sought by all. It is a partnership in wrongdoing in which each member is at once principal and agent.
In the last analysis, every man is responsible for his own conduct solely. When it is said he is responsible for the acts of his agent, it is but to say that he has appointed the agent to take his place and act for him, and has thus assumed all responsibility for his appointee’s acts. As said in the Iowa case, Nesbit v. Town of Garner, supra, “The relation of principal and agent must exist in fact.”
But in the case at bar there was between Abbitt and Lichtsin no element of agency. They were fellow workmen, responsible only to their employer. To the employer, they had, as a part of their contract of employment, assumed the risk of one another’s negligence. To the rest of the world they were independent; and no third person who should do either of them any wrong could shield himself by showing that the other was at fault: each was responsible for his own faults only.
Moreover, even if the instruction were correct as an abstract proposition of law, which it was not, it was certainly not applicable to the facts in this case. Abbitt and Lichtsin were car inspectors. One walked down one side of the train and the other down the other side, each examining the cars as they went along . When this service was ended, Abbitt, as required by his duty, went under the car to change the couplings. To enable him to see to do his work, Lichstein stooped down and held his torch to give light to the man under the car. The evidence shows that both men when so engaged had a right to rely on the signals placed on the rear of the' car, and to rely on every other employe in the station doing his duty. *528No negligence whatever is shown on the part of either Abbitt or Lichtsin. The court at special term, therefore, rightly refused to give the instruction.
In Elliott’s Gen. Prac., section 817, the author, in speaking of the fallacy of incomplete discrimination, says: “This form of the fallacy [applying a general rule to a particular case] often misleads counsel in the preparation of instructions, for, without justly discriminating differences, they state a general principle, correct in the abstract, but which does not fit the case in hearing. A rule may be relevant to one state of facts and entirely irrelevant to another state of facts.”
But even more closely in point than any of the cases cited by counsel is Kentucky, etc., Bridge Co. v. Hall, 125 Ind. 220, where almost the exact question here discussed was before this court, and it was there held, that: In an action by an employe of a railroad company against another corporation for damages for personal injuries, it is not necessary to allege that the fellow servants of the plaintiff were not guilty of negligence contributing to the injury.
In the case at bar, as we have already seen, Lichtsin himself was not negligent. He was engaged in his duty, stooping down under the car and holding his torch so that Abbitt could see his work. The rule that applies to a traveler about to cross a railroad, has no application to a workman upon the road. While the latter must also use reasonable- care, proportioned to the dangers incident to his work, yet his duty requires him to give his attention to this work. It is for that he is employed.
As said in Shorter v. Pennsylvania Company, 130 Ind. 170, so may we say of each of the inspectors in this case: “He was on the road rightfully, and in the discharge of duty, and while he was not absolved from *529the necessity of being vigilant, and careful to avoid danger, he had a right to rely, also, to some extent, on the care and vigilance of others engaged in using the same road.”
In Kellogg v. Chicago, etc., R. W. Co., 26 Wis. 223, 7 Am.Rep. 69,it was held that, in the exercise of his lawful rights every person has a right to presume that every other will perform his duty and obey the law, and it is not negligence for him to assume that he is not exposed to danger which can only come to him through a disregard of law on the part of some other person. A like holding was made in Brown v. Lynn, 31 Pa. St. 510, 72 Am. Dec. 768, that a party is not bound to guard against the want of ordinary care on the part of another; he has a right to presume that ordinary care will be used. And in Langan v. St. Louis, etc., R. W. Co., 72 Mo. 392, that, negligence is not imputable to a person for failing to look out for danger when under the surrounding circumstances he has no reason to suspect any.
In Jordan, v. Chicago, etc., R. W. Co., 58 Minn. 8, 49 Am. St. 486, 59 N. W. 633, it was held, that the rule that one is guilty of negligence who attempts to cross a railroad track without looking and listening, does not apply to the case of one who is employed in a railroad yard, and whose duties frequently make it necessary for him to go upon the tracks.
So in the Indianapolis, etc., R. W. Co. v. Carr, 35 Ind. 510, where it appeared that one Gill was at work upon a railroad track and, as in the case at bar, a train was backing, and the bell was ringing, and someone said “Look out!” when Gill, instead of stepping back, for some cause, stepped forward on the track, and was struck-and killed. The court held that an instruction .was properly refused which charged that if the dé*530Ceased might have seen the train by looking up it was his duty to do so; and if he failed to look up he was guilty of negligence. “He is not to be charged with negligence,” said the court, “because he did not, when suddenly startled by the cry of danger, or by the near approach of the train, do exactly what one not exposed to such peril might think he might or ought to have done.”
In Bucklew v. Central Iowa R. W. Co., 64 Iowa 603, 21 N. W. 103, the supreme court of Iowa, in speaking of the rule requiring that one who is about to cross a railroad track is required to “stop, look and listen,” well says: “Such rule should not be strictly applied to an employe who is engaged in making up trains which must, in a great measure, require his undivided attention. The traveler looks, listens and crosses the track, and his duty is ended. This is not so with an employe engaged in making up trains. For it is undoubtedly true that frequently several cars are to be uncoupled, and others coupled to the train. Considerable time is therefore required. If an employe so engaged were' absolutely required to look and listen for approaching trains, or unexpected movements of the train in his charge, his usefulness would be greatly impaired. We think the question as to the duty of such an employe to look and listen for the movements of trains before he steps or walks on the track must be left to the jury to determine.” Citing, Ominger v. New York Central R. R. Co., 4 Hun 159; Snow v. Housatonic R. R. Co., 8 Allen 441, 85 Am. Dec. 720; Indianapolis, etc., R. W. Co. v. Carr, supra; Crowley v. Burlington, etc., R. W. Co., 65 Iowa 658, 20 N. W. 467.
Both Abbitt and Lichtsin, with the red lanterns hanging on the west end of the car under which they were working, had a right to rely on the usage which *531made lanterns so hung markers to indicate that this was the end car of the train, and to warn all persons to refrain from running any car in contact with it. They had also a right to rely upon the extra red lantern placed on the rear platform as a danger signal, and that all persons handling cars in the depot would take notice accordingly.
In addition, the evidence shows that the brakeman was standing near by, watching until the inspectors should have changed the coupler, in order to give to the engineer of train 33 the signal to back up and couple the two rear cars. The inspectors could have no cause to believe that any other car was to be attached to that under which they were working; and still less to think that switchmen working in the same station would run a car upon their track, and couple to their train, without giving any notice or receiving any permission.
Neither Abbitt nor Lichtsin, therefore, was negligent; so that the instruction refused was inapplicable to the circumstances of the case, even if it were otherwise a correct statement of the law.
What is said by counsel for appellee in relation to other instructions is sufficiently covered by what is said above.
It is argued that by instructions given and refused, the court did not present to the jury the theory of appellee as to the duty of Lichtsin to keep a lookout for danger while Abbitt was under the car. Even if errror was shown in the action of the court in this regard, it would be harmless, for the reason, as we have seen, that Lichtsin was not negligent, and because, even if he were, such negligence could not be imputed to Abbitt. Counsel make much of the circumstance that Lichtsin admitted, on cross-examination, that it was'his duty to watch for danger, saying, “Yes, sir, *532a fellow has got to look out.” But Liehtsin’s evidence also showed clearly that he did not see the car backing in, for the reason that his duty required him to stoop down and hold his torch under the car so as to give light to Abbitt at his work.
But, as a matter of fact, the court did fully charge the jury as to the duty of both Lichtsin and Abbitt to look out for danger. In the fourth instruction given by the court, the jury were told that if Abbitt and Lichtsin were rightfully at work upon the track, it was yet their duty “to be on the lookout for approaching trains of cars, and to act upon the assumption that such cars may come at any time. It is the duty of such persons to look and listen vigilantly for approaching trains of cars at such times and places as are reasonably likely to give them timely warning as to such train or car, and enable them to secure their safety, and if there is a failure to discharge this duty, then there can be no recovery for injury inflicted by such train or car, even though the persons in charge thereof are negligent.” If there was any error in this instruction, it was, as authorities above cited abundantly show, that it was too favorable to appellee. Prom the situation in which Lichtsin and Abbitt were placed, and particularly the situation of the uncoupled car under which they were at work, they had a right to rely upon the assumption that everyone about the depot would also do his duty, especially as to the track where they were engaged, in which case there could be no danger to them.
But while it thus appears that the reason given by the court in general term was insufficient for the reversal of the judgment of the court in special term, yet, as decided in the case of Springer v. Byram, 137 Ind. 15, 45 Am. St. 159, the question is not whether the reason given for the reversal was good, but *533whether the reversal itself was right. It becomes necessary, therefore, to consider also the other errors alleged against the correctness of the rulings and judgment of the trial court.
It is claimed by counsel that the record fails to show any negligence on the part of appellee. Such negligence, however, sufficiently appears from what has been already written. Indeed, it is not necessary to go outside the evidence of the foreman and helper on appellee’s switch train to be convinced that the negligence was gross.
The foreman of the crew, although he had had charge of the switch engine for four months, had never before had occasion to run a car in on the track for this train. He had reason, therefore, to know that the coming of such a car would be quite unexpected by the crew of the O., H. & D. train. If he needed evidence to convince him that the car which he was pushing in was not expcted on this morning, he would find it in the markers which he saw hung up on the rear of the Vandalia car, to show that that car was to be the last on the train. Then there was, besides, the red lantern on the platform, which he also saw, and which he acknowledges was a signal of danger, a warning to keep away, to stop and inquire; and excuses himself by accusing himself, saying that he knew it was a signal of danger, but did not know what kind of danger. Yet he was most familiar with the movements of all cars in the station, switching daily over every track. Then, he neither gave a signal nor received one from anyone connected with the O., H. & D. train. He saw the car inspector with his torch, and did not know whether the inspection was over or not. Again, he had no order to couple a car to the Cincinnati train; the Monon telegram by which he was governed merely informed appellee’s *534yardmaster that such a car was coming for Cincinnati. This was a very different thing from an order to couple to a train without asking the trainmen’s permission. Yet, with all this, and with his experience in and around the Union Station, he ran headlong into the Vandalia sleeper, with sufficient force to lock the automatic couplers. That no custom justified this unlicensed coupling, appears from the fact that two cars, from two other roads, stood already, uncoupled, at the rear of train 33, to be coupled by bácking up the engine of that train when its crew were ready to do so. At most, the telegram would have authorized the switching crew to run in the extra sleeper on the C., H. & D. track, and leave it standing there, with the two other uncoupled cars, to be coupled, by the C., H. & D. crew when it got ready.
The main contentions of appellee’s counsel are thus shown to be without any substantial foundation. And, indeed, the principal opinion would appear to concede1 that appellee’s argument is without merit, in so far as it seeks to uphold the decision of .the general term of the superior court. But the majority opinion discovers material for reversing the decision of the special term, or trial court, in the concluding part of the fourth instruction given by the court. This does seem to me to be a most technical reason for overthrowing a meritorious judgment. Nor do I think that the instruction will reasonably bear any such construction as that placed upon it in the opinion. The part of the charge objected to amounts, as I think, to nothing more than saying to the jury: If you find from the evidence that a red light by night is known by railroad employes as a signal of danger; and if you find that such red light was placed upon the rear platform of the car under which Abbitt was at work, and was there seen by appellee’s *535employes as .they pushed up their car against it, and that they knew at the time that such light so placed was a-signal of danger, then it was'their duty to heed such signal and to act with care and cantion in its presence, even though they did not know at the time what the particular danger was.
With all respect for the opinion of the majority of my brethren, I am quite unable to see that any adequate reason is given to show that this instruction does not state the law correctly. The opinion admits, as indeed the record clearly shows, that there was evidence to which the instruction was applicable, that is, that the red light so placed was a signal of danger, and was known to be such by appellee’s employes at the time they ran their car against the one under which Abbitt was at work. Surely it is not the law that one who perceives a signal of danger is under no obligation to heed the signal and to act with care and cantion when he sees it.
Nor is it any objection to the instruction that there was some evidence to the effect that a red light, so placed as this was, is not a signal of danger. The court plainly states the condition under which the instruction was given: “If you find from the evidence in this case, that a red light by night is a danger signal.” There was evidence before the jury, evidence in super-abundance, to say nothing of common knowledge, that a red light at night is used as a. danger signal. The court was, therefore, fully justified in giving the instruction, as thus applicable to evidence before the jury. If there was other evidence introduced that would justify the jury in finding that a red light so placed was not a danger signal, then it was the business of appellee to ask the court to giAre instructions applicable to its own theory of the case. Appellee has no right to object to the instruc*536tion given, and which is fully and completely applicable to evidence before the jury. The very wording of the italicized part of the instruction, as copied in the principal opinion, is itself a complete refutation of all that is there said against its correctness.
I cannot avoid the conclusion that a grievous wrong has been done in seizing upon so slight" a technicality to set aside the deliberate verdict of the jury and the judgment of the trial court.
McCabe, J., concurs in the dissenting opinion.