The opinion
REGAN, Judge
(dissenting).
In my opinion the record fails to disclose any act of negligence on the part of;the defendant which resulted in the death of Delavallade. He stood between the tracks and leaned his.body against the coupling of the gondola car, where he engaged in the act of smoking a cigarette, which was'not permitted on the property of his employer (the dock board).
His presence could not have been -more effectively concealed from the defendant’s train crew unless he had hidden himself under the gondola car.
Under these circumstances no duty was imposed on defendant to discover the concealed peril of Delavallade.