The opinion
On Motion of Appellant for Rehearing.
The judgment was based on findings involved in the verdict of the jury that the engineer knew, or in the exercise of ordinary care could have known, that appellee had not boarded the train at the time it started on its way, and therefore, under the circumstances shown by the testimony, was guilty of negligence in the manner in which he operated the engine. We thought the findings were not without the support of testimony in the record, and in disposing of the appeal found that appellee was injured as the result of negligence on the part of appellant. It is insisted in the motion that a duty to ascertain whether appellee had boarded the train or not, before starting same, did not in the facts of the case rest upon the engineer; and it is further insisted that there was no testimony tending to show that the engineer knew appellee had not boarded it. We are of opinion the contention should be sustained. There was no testimony showing that the engineer knew that appellee had not gotten aboard the train at the time he started the engine. The brakeman, Maloney, testified that he signaled the engineer to start the train. It is believed the engineer had a right to act on the signal so given to him, without stopping to ascertain whether appellee had boarded, or was in a position where he could safely board, the train or not, and that, in the absence of proof showing that he knew the truth to be to the contrary, a finding that he was negligent as charged was not warranted. On the case made by the testimony it seems that the negligence, if any there was, for which appellant was liable, was the act of the brakeman who gave the signal to the engineer, or of the one of appellant’s employes responsible for its being given as it was.
It is insisted that the statement in the opinion that the engineer “knew there were a number of coal and flat cars loaded with scrap iron and lumber between the car appel-lee was working on and the caboose, which he would not be able, because of their character and the way they were loaded, to get upon as they passed,” etc., is without support in the testimony. As we find on a further examination of the record that the statement is without such support, it is withdrawn.
The motion will be granted, the judgment heretofore rendered by this court will be set aside, and the judgment of the court below will be reversed, and the cause will be remanded for a new trial.