On Petition eor Rehearing.
Pee Curiam.21.
The earnestness manifested by counsel for appellant in their brief on petition for rehearing seems to call for a further word on our part in disposing of such petition. The cardinal error of counsel lies in the assumption that if decedent was a technical trespasser the company owed him no duty other than not wilfully to injure him. The circumstances being sufficient to apprise the engineer of a peril ahead, which might involve life or limb, we are of opinion that we correctly held that the mere fact that decedent might have been technically a trespasser was not sufficient to debar a *418recovery. 1 Shearman & Redfield, Negligence (5th ed.), §§97-100; 1 Thompson, Negligence (2d ed.), §232. The doctrine of last clear chance was clearly in the case, under the second paragraph of the complaint. Indianapolis St. R. Co. v. Marschke (1906), 166 Ind. 490; Indianapolis St. R. Co. v. Bolin (1906), 39 Ind. App. 169.
22. *41923. *418It is now contended, for the first time in this court, that the first paragraph of the complaint fails to state a cause of action, so far as it attempted to charge negligence in furnishing a defective car, and, arguing from this premise, it is claimed that the effect of the evidence is thereby so circumscribed that we erred in holding that appellee was entitled to recover on that theory, and, for the same reason, that we were in error in holding that the instructions tendered by appellant on that subject were properly refused. In appellant’s former brief the question of liability on account of the furnishing of a defective car was argued on broad lines, and without attempting to circumscribe the evidence by the allegations which said paragraph contained. As a consequence, we were not at the pains to consider whether said paragraph could be said to state a cause of action on the sole theory of furnishing a defective car. If it be true, however, that said paragraph does not make out a case of negligence in the furnishing of an imminently dangerous thing, the case upon the evidence- is but shifted to the question as to the engineer’s negligence. As to the complaint that certain instructions concerning the car were not given pursuant to appellant’s request, it may be said that the refusal of each instruction referred to in appellant’s points and authorities (Pittsburgh, etc., R. Co. v. Lightheiser [1907], post, 438) can be justified on the ground that the instruction in terms directed that upon a finding of the facts therein hypothetically stated there should be a verdict for the defendant. This entirely left out of view the subsequent negligence of the engineer. Error cannot be predicated upon the refusal *419of an instruction unless it was the duty of the court to give it precisely as tendered. Knapp v. State (1907), ante, 153, and cases cited. The case as presented below may not have been tried on the most clear-cut lines, but since a judgment will not be reversed except for an error which appellant’s brief makes manifest, we did not regard ourselves as at liberty to explore the record to the extent that might have been done to work an affirmance, but we passed upon the questions as presented. As was said in Martin v. Martin (1881), 74 Ind. 207, 210: “We never go beyond the brief of appellant to search the record in quest of errors which have not been pointed out in the brief.” Other questions are referred to in the brief of appellant in support of its petition for rehearing, but it appears to us that such of said questions as are material are sufficiently disposed of in the principal opinion. Petition for rehearing overruled.