the road, and to communicate to the operators on the trains instructions for running them, received by him from the train dispatcher, is a fellow servant of the firemen on such trains. NELSON, J., after observing that the case of Chicago, M. & St. P. R. Co. v. Ross, 112 U. S. 377, 17 Am. & Eng. R. Cas. 501, had no application, said: "Is the telegraph operator a fellow employe with the fireman who was injured on the west bound train? It is well known, under the rules of the company, that the purpose of his employment was to give information with regard to the location of trains upon the road, and also to communicate any instructions to the operators of these trains how to run, and when and where to stop and start, so that, as far as the operators of these trains were concerned, he was connected with the operation of them. He was instructed by the train dispatcher to take steps to inform the persons operating the west bound train to stop and meet the east bound train at Tower City. The engineers and firemen of the east and west bound trains were in the same common employment, having the same object in view, and so was the telegraph operator at Tower City, who, under his duty and the orders which were sent to him, was required to communicate information to the engineer of the east bound train how to run and what to do. He was a co-employe with them in the same common employment-common service-of operating both trains at that time, and, within the definition of who are "fellow servants" and who are "co-employes," I think he comes within that rule. So that, as the case now stands, even if the jury should find sufficient evidence tending to show that the telegraph operator failed in his duty, although he states that he had performed it, yet, under the rule of law as I have announced it, the plaintiff cannot recover. The negligence of the telegraph operator was not the negligence of the railroad company."

INTERNATIONAL & GREAT NORTHERN R. Co.

บ.

ΚΕΕΝΑΝ.

(Texas Supreme Court, October 28, 1890.)

Injury to Employe-Fellow Servant-Car Inspector and Brakeman.-A brakeman on a railway train was injured through a defect in a foreign car running upon the road of the defendant company. The defendant's car inspector negligently failed to discover such defect and to report the car for repairs. Held, that the negligence of the car inspector, in this respect was the negligence of the company, and the doctrine of co-service was not applicable.

COMMISSIONERS' decision.

District Court.

Appeal from Smith County

Gould, Camp & Robertson, for appellant.

John M. Duncan and I. J. Rice, for appellee.

COLLARD, J.-Appellee, employed as a brakemen, while in

not brake.

servant.

the performance of his duty, uncoupling cars in appellant's railroad yard in San Antonio, had two fingers on Car inspector his right hand smashed off. The cause of the inman's fellow jury was a defect in the car and the coupling apparatus. Appellant, by several assignments of error, arising from the refusal of the court to give special instructions asked by defendant, insists that the injury resulted from the negligence of its car inspector in failing to report the car in bad order for repairs, and the inspector being a fellow servant of plaintiff, the company would not be liable. The rule is that a railway company is bound to furnish safe machinery and appliances for use by its employes in operating its road, and if ́ordinary and reasonable care is not exercised by the company to do this it would be responsible for injuries to its servants caused by such neglect. The company cannot relieve itself of this duty by charging its servants with its performance. The neglect of the servant, to whom the company intrusted such duties, is the neglect of the master. Galveston, H. & S. A. R. Co. v. Farmer, 73 Tex. 85, 38 Am. & Eng. R. Cas. 75, and authorities cited; Houston & T. C. R. Co. v. O'Hare, 64 Tex. 601; International & G. N. R. Co. v. Bell, 75 Tex. 53. The fact that the defective car belonged to another road was immaterial. It was the duty of the company to use the same care in protecting its employes that it would have owed if the car had been its own, and, if the danger of the service was thereby increased, to warn the brakeman. Missouri Pac. R. Co. v. White, 76 Tex. 103. Appellant requested the court to charge the jury that if the injury was caused by the carelessness of the engineer in backing the train, the negligence would be that of a fellow servant, and defendant would not be liable. The court gave, in the general charge, a similar instruction, embodying the same principle, and it was not necessary to repeat it by giving the requested charge. The law of contributory negligence as applicable to the case was given to the jury in its general charge, which dispensed with the necessity of giving the special charge asked by appellant on the same subject. Besides this, the charge asked could not be given, because it contained the oft-repeated illegal propo sition insisted on by defendant that, if the injury resulted from the negligence of the car inspector, the defendant would not be liable. On this account alone the instruction could not have been given. We find no error in the trial of the case or in the judgment of the court below, and conclude it ought to be affirmed.

STAYTON, C. J.-Report of the commission of appeals ex

amined, their opinion adopted, and the judgment is affirmed.

Fellow Servants-Negligence of Car Inspectors and Repairers. See Cincinnati, H. & D. R. Co. v. McMullen (Ind.), 38 Am. & Eng. R. Cas. 165, note 172.

servants.

In Daniels v. Union Pac. R. Co., Utah Sup. Ct., March 1, 1890, the action was brought by a brakeman for injury to him while in the line of his duty. The train on which he was at work was wrecked by a broken wheel, the crack in which could have been seen by proper inspection. Defendant contended, that if there was negligence, it was the negligence of the car inspector, and he was the fellow servant of plaintiff. The court held that the car inspector and the brakeman could not be considered fellow BLACKBURN, J., said: "However various, the decisions agree that the weight of authority is that, in order to constitute servants of one master fellow servants, within the rule respondeat superior, they must be engaged in the same line of work, be under the control of the same foreman, be employed and discharged by the same head of the department in which they work; that they labor together in such personal relations that they can exercise an influence upon each other promotive of proper caution in respect of their mutual safety; that they shall be at the time of the injury directly co-operating with each other in the particular business in hand, or that their mutual duties shall bring them into habitual con-association, as they may exercise an influence upon each other promotive of proper caution, and to be so situated in their labor, to some extent, to supervise and watch the conduct of each other as to skill, diligence, and carefulness. Chicago & A. R. Co. v. Kelly, 127 Ill. 637. The evidence in this case clearly shows that the inspector of cars is not in the same line of work with the brakeman. He has nothing to do with the running of trains; is not under the control of the conductor, but reports to, is appointed by, and may be discharged by, and is under the direction of, the foreman of the repair shop; has no con-association with, and is rarely seen by, the brakeman on the train, unless casually noticed by him when the train is stopped. They have no work in common; are not so associated in their labor as to be able to act together in a way promotive of their mutual safety. We cannot say therefore, as a matter of law, that the car inspector, in this case was a fellow servant of the respondent when the accident occurred."

In Morton v. Detroit, B. C. & A. R. Co., Michigan Sup. Ct., June 13, 1890, the action was brought to recover damages for the death of a brakeman, killed by the breaking of a chain which connected the shaft that he turned with the brakes. The defendant contended that there could be no recovery, because the defect if it existed was under the supervision of the inspector, and should be discovered by him, and that the negligence, if any, was that of a fellow servant. But the court held, that the negligence of the car inspector, whose duty it was to inspect cars and apparatus, was the negligence of the company, and that such inspector could not be considered the fellow servant of the brakeman.

44 A. & E. R. Cas.—39

BURRELL

V.

GOWEN, et al.

(Pennsylvania Supreme Court, May 25, 1890.)

Injury to Employe-Fellow-servants-Track Repairer and Engineer.-The plaintiff, an engineer, was injured by the overturning of his engine. It was shown that a rail, where the accident occurred was somewhat worn, and that the track inspector and his gang went over the track at that place a short time before the accident. Held, that it was proper to non-suit the plaintiff, since the negligence, if any, was that of plaintiff's fellow-servant, whose duty it was to inspect and keep the track in safe condition.

APPEAL from Columbia County Court of Common Pleas. Action by Isaac C. Burrell against Franklin B. Gowen and Stephen A. Caldwell, surviving receivers of the Philadelphia & Reading Railroad Company, to recover damages for injuries received by him by reason of the engine on which he was employed mounting the rail, leaving the track, and overturning with him. The opinion of the lower court was as follows:

"When in a case of this kind it is insisted that there is no evidence tending to show negligence, it becomes a question of law for the court to pass upon; and whenever the plaintiff at the close of his case has not shown such evidence as would support a verdict of negligence, if found by the jury, the court should withdraw the case from their consideration. There should be at least some evidence to sustain the verdict in every essential particular. When the evidence is clearly consistent with the existence or the non-existence of negligence, the judge ought not to permit the case to go to the jury. Briefly, what are the prominent facts in the plaintiff's case to prove negligence on the part of the defendant company? Krebs says that the inside of the outside rail of the curve was worn to the fish-plates, but does not show how far that was, nor does any other witness. Cornelius says that it was worn three-fourths of an inch. Traver testifies that there were splinters on it: cannot tell whether worn to the fishplates or not. Kern says it was worn from a half to threequarters of an inch. Krebs says the old rail was removed, and another put in its place, within five days from the time of the accident. Other rails of the curve were taken out, and new ones put in. He speaks of it as in the plural. Neyhart testifies that from station two to station four and one-half the

curve is a twelve-degree curve, and from station four and a half to station seven a ten-degree curve,-a compound curve. Gray testifies that the elevation in a true curve should be practically uniform. For a curve such as here described, I should say it is out of shape. I do not think it would be safe. It must be of uniform elevation. I do not think it would be physically possible for an engine in good condition in all its machinery, and going at the rate of fifteen miles an hour, to mount the track in a curve of twelve degrees, if the rails. were in proper condition on the inside of the ball, and if the track had the proper degree of curvature.' Now, that is the testimony relating to negligence,-to the track being out of shape or out of repair. Jacob Yetter testifies that the twelvedegree curve is five inches in elevation, and at a point thirty feet north is four and a half inches,-no, that the ten-degree curve is five inches in elevation,-while, at a point on the twelve-degree curve, the only point taken, the elevation is seven inches. How could it be uniform in such a compound curve? Berninger says that the rail was worn about a quarter of an inch. Reichart says it was worn about a quarter of an inch, into the fish-plates; and you may remember that they were old-fashioned fish-plates. What the difference is between an old-fashioned fish-plate and a new-fashioned one was not brought out, nor to what distance the rail was worn, necessarily, in order to reach the old-fashioned fish-plate. Yetter says that the rail was worn about a quarter of an inch. I think Berninger, Reichart, and Yetter used the expression, "about a quarter of an inch.' Krebs says, in one place, It was worn bright like all the other rails around the curve; bright on the inside.' Three witnesses, one of whom took a careful measurement, put it at one-fourth of an inch, which Gray says was safe. Yetter says he found the entire curve in proper gauge. I considered the curve in excellent condition. I found a well-surfaced curve, in good condition from one end to the other. I found it a well-gauged track. I considered the entire curve entirely safe. I examined into the cause of the wreck. It was part of my duty to examine into the cause of wrecks. I found the rails evenly worn all round the curve, not splintered nor damaged; no flaws or spawls. I considered them entirely safe. I found nothing wrong with the rail; it was a well worn smooth rail. The force appeared to have been from behind the train, crowding the engine. I found the marks here to represent exactly the marks in three other wrecks-evidence not objected to-admitted to have been caused by shutting off steam. It looks as if it had been strongly crowded, and afterward run up and off. I found the rail evenly worn, without any flaws,