dissenting. — The petition alleges that defendant was negligent in permitting the engine to be in charge of an incompetent person, who was not an engineer, at the time of the accident. The court instructed the jury in the following language: “ You observe that the only claim of negligence against the defendant is that the engine or cars was moved without proper warning. It is immaterial, therefore, whether the person in charge was inexperienced or otherwise, except as that may go to show whether proper signals were given or not.” It will be observed that an issue involving the negligence of defendant in intrusting the engine to an incompetent person is withdrawn from the jury by the instruction, which incorrectly states the allegation of negligence found in the petition. This, in my judgment, is a most glaring error. Of course, no one can doubt that it is negligence for a railroad corporation to employ and permit a person not an engineer, or sufficiently skilled, to run or handle an engine. But the foregoing opinion holds that “ if the engine was properly handled, and the usual signals given when it was moved, and the rate of speed was not too great, then it was clearly immaterial whether the person in charge was inexperienced or not.”
*138It is plain that, in determining whether the engine was' properly handled, it is important to know whether the per-' son in charge was sufficiently skilled in his business. It is impossible to discover all things that the person did do, or did not do. If he was skilled, he would be presumed to have done all that should have been done; for he is presumed to have done his duty. If he was not skilled, nd such presumption could arise. Therefore, if the accident could have been avoided by proper care, it would be presumed that such oare was exercised, if the person was skilled, in the absence of evidence of negligent acts; but, if the person was unskilled, the jury would be authorized to presume that proper care was not exercised. The fact, therefore, whether a skilled man was'in charge of the engine was proper for the jury to consider in making up their verdict.
In my opinion, the quotation above presented from the majority opinion is erroneous, in that it is based upon the fact that the engine was properly handled. How are we to know that fact? There was no finding thereof by the jury, and we are surely not permitted to exercise the functions of the jury, and find the fact ourselves. We 'cannot say that there was no evidence showing want of care by the person in charge of the engine, and, as I have shown, his care cannot be presumed, in view of the fact that he was unskilled in handling the engine.
I am clear in the opinion that the instruction given to the jury, to which I have referred, is erroneous.