¶1It is claimed that the accident occurred by reason of the negligence of the engineer, a servant of the defendants and a fellow-servant with the deceased. To support plaintiff’s case under this state of facts it was not only necessary to prove that the engineer was intoxicated at the time of the accident, but that defendants were guilty of negligence in employing him. It was proven that his general reputation for sobriety was bad, and it may be conceded for the purposes of this case, at least, that defendants were lacking in the exercise of due and proper care in hiring such a man. But there is no evidence in the record that he was intoxicated at the time of the accident, and nothing therein from which we are justified in drawing an inference to that effect. I concur in the judgment.
¶2De Haven, J., concurred in the opinion of Mr. Justice Garoutte.
¶3Rehearing denied.