Patton v. Grand Trunk Western Railway Co.

On Rehearing.

Bird, J.

This case has been considered again, on rehearing. Mr. Justice Clark has written on the re hearing. I am in accord with his conclusion, but am at variance with his statement that “the theory of gross negligence ought to have been omitted from the charge.” It is conceded that LaBarre, the brakeman in charge, waved the waiting vehicles across the track behind the caboose. The occupants of the vehicles could not see the west-bound track to the east, and but for the brakeman’s invitation it was a negligent act upon their part to attempt to cross- behind the caboose without…