On Petition for Rehearing.
Spencer, C. J.*3669 *365. In support of its petition for a rehearing appellant earnestly insists that in our original opinion we passed, without deciding, one of the principal *366questions presented by the appeal, viz., “Whether or not an employe can be spared from the effects of contributory negligence while conforming to any order of his superior?” It is true that this issue is not expressly treated in the opinion as heretofore rendered, but counsel overlook the fact that some of the questions there under consideration were disposed of, in-their substance, through an adoption of the conclusions reached in the case of J. Wooley Coal Co. v. Tevault (1918), ante 171, 118 N. E. 921, decided a few days before. It was there held that the presence of contributory negligence, as the term is properly used, will always defeat an action under the Employers’ Liability Act of 1911, but that its existence in a given case is a matter to be determined by the jury as an issue of fact.
12. The contention is now made that instruction No. 2 given by the trial court on its own motion 'in this case is in conflict with the rule thus announced in the Tevault opinion, but that objection was waived through a failure to present the same in appellant’s original brief. Malott v. State, ex rel. (1902), 158 Ind. 678, 64 N. E. 458; Chicago, etc., R. Co. v. Roth (1915), 59 Ind. App. 161, 168, 107 N. E. 689, 108 N. E. 971. Counsel there said: “Instruction No. 2, given by the court possibly states an abstract principle of the law correctly but it was error to give this instruction for the reason the evidence does not support the contention that the injury to the plaintiff resulted directly from the plaintiff’s obedience to the order of the conductor.” This objection was deemed unworthy of detailed consideration since the instruction is in the alternative and purports to state the law applicable to a finding either that injury resulted from obedience to an order, or that it was not influenced thereby. Other issues of negli*367gence are present in the case and, as already noted, the verdict appears to rest on proof of such charges.
The remaining questions presented by appellant’s petition for a rehearing have again received careful consideration, but we are satisfied with the conclusions reached in the original opinion and see no reason to depart therefrom.
Petition overruled.
Note. — Reported in 118 N. E. 824, 119 N. E. 483. Railroad employes, duty in crossing tracks as to looking for approaching trains, 11 Ann. Cas. 211, 26 Cyc 1265. See under (1) 17 C. J. 1018; (6) 29 Cyc 520.