ON MOTION FOR REHEARING.
GRAVES, J. —It is earnestly, insisted in the motion for rehearing that the negligence of the brakeman was never submitted to the jury and that therefore the issue found by this court as vital to defendant’s case is an entirely new theory injected here for the first time. And it is further insisted that the petition does not count upon the negligence of the brakeman. If either of these contentions was well founded, there would be error in the opinion, but they are not, as we read the petition and the instructions.
In the first place the petition, after stating that plaintiff was placed in a place of danger by the direction of the brakeman, then proceeds: ‘£ That while plaintiff was so engaged on said car, and was in said place of peril, defendant and defendant’s said conductor, agents, servants and employees operating said train, knowing that plaintiff was -on said car and in a place of peril and after they could have known it by the *593exercise of ordinary care, negligently and unshUlfully mismanaged the said engine, cars and train cmd carelessly and negligently and with great and unusual and unnecessary force and violence ran said engine and freight cars attached thereto, against the said car on which said plaintiff was, by reason of which, ” etc.
TMs petition is certainly broad enough to include the brakeman. It includes in its allegations not only all tbe agents and employees of defendant, but the defendant itself, the language being, “defendant and defendant’s said conductor, agents, servants and employees operating said train.” It does not stop here, but it avers that “they” (referring to the clause above, which included defendant and all of its employees) “negligently and uuskillfully mismanaged the said engine, cars and train and carelessly and negligently . . . . ran said engine and freight cars attached thereto against the said car on which plaintiff was,” etc.
So that it is apparent that a fair construction of this petition leads to the inevitable conclusion that it charges the injury to plaintiff to have been occasioned by the negligence of the brakeman, as well as by the negligence of the engineer and other employees. Then going for a minute to the evidence, it is there shown that the middle brakeman was the vice-principal so far as the switching of cars was concerned. Under the evidence .his peculiar duty was to get the switch list from the station agent and proceed to do the switching. Whilst so doing the engineer acted under his orders and signals. When he signaled to the engineer to come, he came, and when he signaled to him to go, he went. He was in fact the party, at that time, managing and “operating” that train, or portion of the train. He was in charge of and operating that train in the doing' of this work. This under the testimony was his duty.
*594Now, was this negligence submitted to tbe jury? We tbink so. Instruction numbered 1 for tbe plaintiff, among other things, says: “That defendant’s agents, servants and employees in charge of and operating and managing an engine and cars attached thereto, saw the said Errett Hall and his said peril and danger and became aware thereof in time by the exercise of ordinary care, to have avoided injuring him, and that the defendant’s said agents, servants and employees in charge of said engine and cars attached thereto failed to exercise such ordinary care and negligently ran said engine and cars against the car upon which said Er-rett Hall was,” etc.
When this is read in connection with the portion of the petition above quoted, it will be seen that the instruction covers the negligent acts of the same persons as is covered in the petition.
It covers the acts of all agents and employees engaged in operating the train at the time, and certainly covers the negligence, if any, of the brakeman who, under the evidence, was in fact the controlling spirit of the operation of the train at the time.
The negligence of this particular employee was not only pleaded but submitted. In the original opinion we discuss fully the effect of the giving of an erroneous instruction for the defendant, when a proper one had been given for the plaintiff, and will not reiterate here. Under the facts, had defendant asked and the court refused an instruction limiting the liability to the negligence of the brakeman, the defendant would have been in condition to complain.
Other points made are sufficiently answered in the original opinion. Motion for hearing overruled.
All concur.