
    Yazoo & M. V. R. Co. v. Lum et al.
    
    (In Banc.
    May 26, 1941.
    Suggestion of Error Overruled June 14, 1941.)
    [2 So. (2d) 561.
    No. 34621.]
    
      Richard Denman, of Greenwood, and Lucius E. Burch, Jr., Clinton H, McKay and Frank F. Roberson, all of Memphis, Tenn., for appellant.
    Colson & Guy, of Greenwood, for appellees.
    
      Argued orally by Richard Denman and Lucius E. Burch, Jr., for appellant, and by T. A. Guy, for appellee.
   Griffith, J.,

delivered the opinion of the court.

There is no substantial basis for a differentiation between this case and that of New Orleans & N. E. R. Co. v. Keller, 162 Miss. 392, 138 So. 358. It is true that in that case it was the fireman who saw the deceased as he turned to go towards the track at the private crossing, while here it was the engineer himself; hut the duty of a lookout is as much on the fireman, when not busy with his fires, as upon the engineer, Mobile & O. R. Co. v. Johnson, 157 Miss. 266, 275, 126 So. 827 — hence the cases cannot he differentiated on that account.

The Keller .case controls, and under it appellant was entitled to the peremptory instruction requested.

Reversed, and judgment here for appellant.  