The other Justices believe that charge A was not abstract. However, a majority of the court, composed of ANDERSON, C. J., and Justices SAYRE, SOMERVILLE, GARDNER, and MILLER, agree with the writer that the charge was properly refused as being misleading and confusing, in that it did not define or indicate the time when plaintiff was not in peril, as related to the time of his injury and that, when defendant's agents in charge of the said train last saw plaintiff at or about his said labors, "covering the spool," or by the exercise of due diligence should have seen him so engaged or circumstanced.
Justices SOMERVILLE and MILLER believe that the effect and substance of the charge is covered in defendant's given charges.
The application for rehearing is overruled.
ANDERSON, C. J., and SAYRE, SOMERVILLE, GARDNER, and MILLER, JJ., concur.