ON REHEARING.
SAYRE, J.On appellant’s application for rehearing this case went to the full bench, whereupon the court upon due consideration directed the following statement and conclusion:
*384On appellant’s brief on its application for rehearing it is urged with great and renewed vigor that the judgment in this case should be reversed for the trial court’s error in refusing appellant’s requested charge No. 17 which reads as follows: “The court charges the jury that under the issues and evidence of this ease the plaintiff is not entitled to recover on account of any negligence of the engineer Clem after he discovered the peril or dangerous situation of the plaintiff on the occasion complained of.”
After a careful re-examination of the evidence, we are still unable to find any justification for the theory that the engineer discovered the peril or dangerous situation of the plaintiff on the occasion complained of. It follows hence that the charge might have been given with perfect propriety and that its refusal constituted error for which the judgment should be reversed, unless it appears upon the whole record that defendant had in another way the benefit, substantially, of the proposition of the instruction refused.
In our original opinion we stated that the court at defendant’s request had given the affirmative charge in writing against count 1 which specifically charged Clem with negligence after he discovered plaintiff’s presence and peril at the place where he was injured. In the brief it is now suggested that the charge as to count 1 was given for the reason that it was drawn under the Employers’ Liability Act of this state. That may have been the reason; but, considering that the answer to the question whether plaintiff and defendant were engaged in interstate commerce rested in .inference to be drawn by the jury, the cogency of the reason is not quite clear. But we are not so much concerned about the court’s reasons as we are about the effect of the record. The bill of exceptions shows that the court in its general statement and oral charge to the jury, after stating the effect of counts 3 and 7, said to the jury: “The other count, gentlemen of the jury, by number I believe is 4. The plaintiff makes the same charges I have suggested to you about the negligence of Mr. Clem who, he says, had charge of the engine in the switch yard at Loyal, and his negligence consisted in this: That Clem discovered that the plaintiff Mr. Fisher was in dangerous proximity to the track he was running the engine on and likely to be injured unless something was done to prevent it, and that after the discovery of that peril he failed to give a signal, a warn*385ing, or failed to stop, his engine, and as a result of that he was injured.”
At one place in the record, after what purports to be the court’s oral charge to the jury which at that place, we take it, is set out in compliance with the remedial act of September 25, 1915, requiring that every general charge shall be in writing or taken down by the court reporter as it is delivered to the jury and set out in the transcript on appeal, though this case was tried on September 8, 1915 — and this must haye been after the court had stated the meaning of count 4 to the jury — that appears :
“Before the court completed his charge, the plaintiff’s counsel asked leave to withdraw all the counts; of the complaint except counts Nos. 5 and 7. Thereupon the court instructed the jury as follows: ‘Now the plaintiff has the right at any time to withdraw any of these counts, and those that were left in’— before that the court had given the affirmative charge against counts 1 and 2 — ‘have been withdrawn until we have only counts 5 and 7, and these are the only ones you will consider.’ ”
The bill of exceptions contains an identical account of what happened, as stated above, but this in addition: “At the conclusion of the court’s oral charge, in open court, and in the presence of the jury and before it retired, plaintiff’s counsel withdrew all the counts of his complaint except counts 5 and 7, stating to the court that all the issues charged in the counts withdrawn were embraced in these two counts.”
The process set forth above eliminated not only counts 1 and 2, to which we have referred, but counts 3 and 4, in both of which plaintiff’s injury was ascribed to the negligence of Clem and in the last named, or numbered, in which it was alleged that, “Clem discovered plaintiff’s peril in time to avoid injuring him by giving signals of warning and stopping said switch engine, one or both, and negligently failed to give warning signals or to stop said engine,” thus stating the only conceivable form of subsequent negligence that might have been attributed to Clem in the circumstances. In the 'fifth count plaintiff counted upon the negligence of Sparks after discovering plaintiff’s peril, while count 7 contained only the general charge that: “The agents or employees of the defendant, engaged in operating said engine, negligently propelled the same against the person of the plaintiff, inflicting great personal injury.”
*386It is true that under our decisions it was possible for the jury to return a verdict against defendant under count 7 on a finding that any agent of defendant, engaged in operating the engine, after discovering plaintiff’s peril, negligently failed to take proper precautions against the danger of the situation thus brought to his knowledge, and that, on this showing,'nothing else appearing, a reversal would be ordered for the error in refusing the charge numbered 17. But on the record here shown we think it appears with reasonable certainty, notwithstanding the statement of plaintiff’s counsel to the effect that “all the issues charged in the counts withdrawn were embraced” in counts 5 and 7, that neither the court nor the jury understood that the case was submitted on the charge of subsequent negligence against Clem, but rather that they understood that, practically, the case was given to the jury on the issue whether plaintiff’s injury had been caused by the negligence, initial or subsequent, of Sparks, as it should have been under the evidence. Nor, in view of these circumstances tending to exclude the conclusion, do we find it necessary to indulge the conclusion that perchance the. jury may have erroneously based their verdict upon a state of supposed facts that was without warrant in the evidence. In these peculiar circumstances, common sense rebels against the idea that the court’s refusal of charge 17 should necessitate a reversal. Certainly the court would proceed upon a highly technical ground, having no support in the meritorious issues litigated, to adjudge a reversal of this judgment because the general count No. 7 had the legal content of a charge of subsequent negligence against Clem when, as matter of fact, it appears that plaintiff was insisting upon a different ground that had support in the pleadings and the evidence, and this conclusion is not affected by the fact that a statement, capable of, though not necessarily requiring, a different interpretation, is attributed by the bill of exceptions to counsel for plaintiff, nor by the fact that counsel have here made a futile effort to sustain the proposition that there was evidence of Clem’s negligence subsequent to a discovery of plaintiff’s dangerous movement towards defendant’s track. So far as we are advised, we have no case holding that a reversal must be ordered in such circumstances, and we think that the case here falls within the remedial purpose of section 5364 of the Code as amended by the act of September 25, 1915.
*387As to the ruling on the exception reserved to the admission of the testimony of the witness Woodin: The court is of opinion that this witness’ testimony as to what Sparks said shortly after the accident, taken in a natural and unstrained way, tended to support Sparks’ testimony at the trial and so, as far as it went, defendant’s version of the accident. Therefore the court holds it to be quite clear that the admission of this evidence worked no harm to appellant and that no reversal should be predicated upon it.
Application overruled.
All the Justices concur, except Anderson, C. J., who dissents on the point raised by the refusal of defendant’s charge No. 17.