The opinion
I have reached the conclusion that the running of the north-bound train on the south-bound track on the schedule time of a regular north-bound train, which regularly ran on the north-bound track, presented such condition of danger to persons who might rightfully be on the south-bound track, including trackmen, that it cannot be said as a matter of law there was no duty on the trainmen to keep a lookout for deceased. Without regard to any signal given the engineer, I conclude the duty to keep a lookout under the circumstances was one for the jury. Such duty, while rounding a curve extending to within some 65 feet of the place of injury, during which time the engineer could not see the track ahead, devolved on the fireman. There is some evidence that deceased was at work on the track for such time that a proper lookout would have discovered his danger, calling for prompt preventive measures, such as giving a warning signal. Hence, I conclude there was no error in refusing the charge exonerating the fireman.
I desire to limit my concurrence to what is here said.