The opinion
ON MOTION FOR REHEARING
DIES, Chief Justice.
While I concurred in remanding this case for a new trial, it was for different reasons than those given in the majority opinion. In order to permit the Supreme Court to review this case if it so desires, these reasons must now be given.
In order to explain my rationale it will be necessary to quote some of the evidence. The conductor, Johnson, sat behind the brakeman, Rhymes, on the left-hand side of the engine. This was the side from which the plaintiff approached the crossing. Johnson testified that when he first saw the truck it was approximately 200-300 feet back from the railroad crossing and at that time the locomotive was approximately 150 feet, or three car lengths, from the crossing. He was asked:
“Q. When you first saw the truck did you do anything at that time ?
“A. Yes, I talked to the engineer and after I saw it, I talked to him and told him it didn’t look like he was going to stop, and the other fellow in front of me said he was not go-to stop and so he big holed it.”
He further testified that the train was going about twenty miles per hour.
The brakeman, Rhymes, sat in front of Johnson and on the left side across from the engineer. He gave the following testimony:
“Q. Now, on this particular occasion did you see the truck that Holloway was driving before the collision? Did you see it at any time before ?
“A. I see it before he hit, yes, sir.
“Q. Now, when you saw it, did you speak up or holler or call the engineer’s attention to it, or just what did you do when you saw it ?
“A. When I seen him, then I hollered to the engineer man, ‘Here come one,’ And I repeated again, ‘Here come one.’
“Q. Now, before you did this, before you said, ‘Here come one,’ the first time, had the conductor, who was sitting behind you, said anything about a car ?
“A. He had looked, and he did speak these words, ‘All clear on my side,’ as he didn’t see anything. That is before we had got down to a certain distance, he had looked and he didn’t see anything.
“Q. After he said, ‘All clear on my side,’ did he say anything else before you said, ‘Here comes one’?
“A. He said that before I said, ‘Here come one.’
*710 “Q. That’s what I mean, he said, 'All clear on my side’ ?
“A. That’s right.
"Q. Did he say anything else after that before you said anything?
“A. I don’t remember him saying anything.
* * * * * *
“Q. So I am sure I understand you, are you saying that Johnson never said or did anything to indicate that he had seen this truck at anytime before you did ?
“A. No, he spoke before I did. He says, ‘All clear on my side.’
“Q. All right.
“A. He couldn’t see that highway. I wouldn’t say that Johnson was looking from the highway, was concerned, but when we got so close I looked between them trees and you could see between them, I see that truck.
“Q. Well, what I am saying, he didn’t haul out and say, ‘There comes a truck,’ before you did?
“A. No, the only thing he said before I did was, ‘All clear on my side.’ ”
Rhymes further testified that at the speed they were going — twenty miles per hour— the train could have been stopped in three car lengths.
The engineer, Wallace, further confirmed that the train as it approached the crossing was doing twenty miles per hour. He testified that when he applies the brakes on the train it is by using, a brake valve which is to the left of the engineer and is accomplished by using his left hand. He big holed — emergency stopped — this train approximately fifty to seventy-five feet from the crossing. He never saw the truck prior to the collision. He was asked:
I assume, when you say big holed it fifty or seventy-five feet from the crossing, you did this because somebody told you to ? Q.
“A. Yes, sir.
“Q. Who told you to ?
“A. The brakeman.
“Q. That would be Rhymes ?
“A. Yes, sir.
“Q. Tell me how he said big hole it?
“A. He come up on his feet and said, ‘He is not going to stop.’ And I put it in emergency then.
“Q. When he said that, you didn’t know if he was talking about a truck, or car, or what ?
“A. That’s right, I didn’t know.
“Q. When he said that, you put it in big hole?
“A. It was an emergency then.
“Q., What about Johnson in the rear? Did he say or do anything to indicate any emergency ?
“A. No. No, he didn’t say anything.”
From this testimony, in my judgment there is no question but that the conductor, Johnson, discovered plaintiff’s perilous position in time, under the testimony, when the train could have been stopped. The problem is whether Johnson had means at his control to have stopped the train and avoid the collision.
In Turner v. Texas Co., 138 Tex. 380 , 159 S.W.2d 112, 118 (1942), the court said that the actual discovery must be made by the person who inflicted the injury. This might be differently stated as saying that the discovery of the perilous position of the plaintiff must be by a member of the train crew who had some means at his disposal to avoid the collision. The record here is silent as to any brake except the one to the left of the engineer, who applied *711 it. In my judgment, the evidence is clearly insufficient to show that conductor Johnson’s warning was heard and realized by the engineer. To me, the denial of the brakeman that Johnson gave such warning, and in fact his testimony that Johnson gave the all clear signal, together with the fact that the engineer did throw the train into an emergency stop on hearing brakeman Rhymes’ warning, confirms my opinion.
If it had been shown there was a brake available for the conductor, Johnson, to use, we would have had a different situation. In Texas & New Orleans Ry. Co. v. Hart, 163 Tex. 450 , 356 S.W.2d 901, 907 (1962), it is indicated that locomotives have valves on the fireman’s side but we cannot assume this. In that case, Justice Greenhill held that the burden was upon plaintiff to prove there was an emergency brake on the fireman’s side.
Appellees argue in their motion for rehearing that the case of Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538 , 252 S.W.2d 561 (1952), at least in the case of a train crew, holds that the discovery by one member of the train crew and proof that some other member of the train crew had means to avoid the collision is sufficient to raise discovered peril. Appellees argue that the train crew is a “team” and that Johnson’s discovery of the perilous position of plaintiff in time to avoid the collision made it incumbent on him to get that message to someone capable of stopping the train in time to avoid the accident. However, we have no proof that in a noisy engine cab the conductor from his position in the cab could make himself heard. And, as previously noted, there is absolutely no evidence in this record of any other means at Johnson’s command. This may be the holding in the Ford Case, but there this problem was not directly involved because there was no question but that the engineer heard the fireman’s warning. The court did say:
“When the fireman discovered the perilous position of the plaintiff it was his duty to warn the engineer and to call for the application of the emergency brakes. It then became the duty of the engineer to apply the emergency brakes.” Ford v. Panhandle & Santa Fe Ry. Co., supra ( 252 S.W.2d at p. 563 ).
Admittedly, this case presents a confusing set of facts which cannot be completely answered by any prior decisions.
It is my judgment that this case should be remanded for new trial and it should be determined whether Johnson had some means at his command to avoid the collision.
The appellee’s motion for rehearing is overruled.