The opinion
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Douglas, J.,
(after stating’ the facts). Tbe injury occurred on the 2nd day of November, 1896, before tbe Fellow Servant Act of 1897, and therefore the negligence of tbe engineer, wbo was tbe fellow servant of tbe plaintiff, is not imputable to the defendant.
Tbe case was ably and candidly argued, and it is admitted that tlie negligence of the defendant, if any there be, must consist in its failure to notify the plaintiff’s engineer that, an extra train, drawn by engine No. 64, would be met at Lexington. Had tbe collision occurred with this train, which we will call No. 64, tbe case would be essentially different; but its presence at Lexington did not directly cause any injury to the plaintiff, and did not contribute to his injury, except in so far as it tended to mislead tbe engineer by its similarity in numbers with tbe train which he expected to meet. It was a singular coincidence that an extra train drawn by engine No. 64 should be standing on the siding at the time and place where the plaintiff’s engineer was ordered to pass an extra having engine No. 54; but we do not think that it was anything more than a coincidence. It is true tbe defendant might have notified the plaintiff’s engineer that No. 64 would be at Lexington, and have cautioned him not to mistake it for No'. 54. This might have avoided the accident. But could the defendant be reasonably required to anticipate that the engineer would make such a mistake under circumstances of such imminent danger when he had the means of accurate information? In the light of subsequent events, we may say that it was unfortunate that the defendant did not notify the engineer of the presence of No'. 64; but we must not forget the old and homely proverb that “Our hind-sights are always better than our foresights.”
The engineer could easily have ascertained the difference in numbers by the exercise of reasonable care, which he was
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bound to use by the express rules of the company and the inherent responsibilities of his position. He failed to obey the orders of the company, and that failure appears to have been the proximate cause of the accident. As his negligence was not
then
imputable to the defendant, and as we do not think the defendant was required in the exercise of reasonable care to notify the plaintiff engineer’ of the presence of No. 64, we fail to find any evidence whatsoever tending to prove the negligence of the defendant. The judgment is
Affirmed.