The opinion
GIBSON, V. C. J.,
(dissenting). I agree with the majority opinion insofar as it holds that the court did not err in refusing to sustain defendant’s demurrer to plaintiff’s evidence and in refusing to sustain defendant’s motion for directed verdict. There was conflicting evidence as to whether or not the bell or whistle was sounded and as to the speed of defendant’s train and as to the other allegations of negligence contained in plaintiff’s petition which necessitated the submission of the case to a jury, but I think the case should be reversed and remanded for new trial because of an erroneous instruction.
Defendant objected to the instruction wherein the court submitted the question whether the trainmen kept a proper lookout when approaching the crossing. Plaintiff neither pleaded nor proved that a proper lookout was not maintained. He contends that defendant supplied the omission with sufficient proof, but I do not agree that the testimony pointed out by plaintiff in this regard constituted evidence that no lookout was kept. The night was extremely cold. The fireman testified that he kept watch ahead but did not see the automobile until it ran into the side of the engine; that the steam from the whistle blast sometimes obstructed his view. I do not consider that testimony sufficient to support an inference that no lookout was maintained. A railroad company is required to use ordinary care to avoid injuries in cases of this character. St. Louis-S. F. Ry. Co. v. Prince, 145 Okla. 194 , 291 P. 973 , 71 A. L. R. 357. And failure to keep a lookout might constitute want- of ordinary care. But the jury should not be instructed on that question over defendant’s objection where no issue was presented. I cannot consider the instruction as harmless error. By reason
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of that instruction the jury may have felt at liberty to draw an inference that no lookout was maintained, and there was not sufficient evidence of the fact to support such inference.
For the foregoing reasons, I respectfully dissent.