delivered the opinion of the court:
This is an action on the case in the circuit court of Marion county by appellee, against appellant, to recover for the death of appellee’s intestate from an injury received while in the service of appellant as a bralceman. There was a trial by jury and judgment in favor of the appellee for $8ooo. On appeal to the Appellate Court this judgment was affirmed, and a further appeal has been taken to. this court.
Appellant has a double track from Centraba to Mounds, in this State, the south-bound trains having superior rights over the west track and the north-bound over the east track. In accordance with the rules of the appellant no north-bound train has any right to be on the west or southbound track unless protected by sending out a flagman to warn any train approaching from the north. On October 23, 1907, the freight train on which the decedent was employed as brakeman left Centraba over the south-bound track, and had reached a point about a half mile south of Elkville and about a mile north of Hallidayboro when a collision occurred, which caused the death of the decedent. Some little time before this, another freight train of appellant had arrived from the south at Hallidayboro station and was engaged in what is called “pulling the mine.” At Hallidayboro there are two main tracks and a passing track between them. The freight train going north stopped at Hallidayboro for the purpose of taking the coal cars from a switch track, and in order to do this the train was pulled in onto the passing track and left standing there while the engine was cut off, went to the north end of the passing track and backed down the west track to the mine. It there secured six cars, which were to be put on the front end of the train, and after making the necessary movements to get off the mine tracks and get the engine on the north end of the cars it was handling, the engine with these six cars moved north up the west main track to a point immediately north of the north point of the switch, which leads off of the west main track at the north end of the passing track. Just as the engine and train of cars had started to back in off of the main track onto the north end of the passing track, the train on which decedent was employed came in sight and a head-on collision followed. It is conceded that it was then too late to stop the south-bound train and too late for the engine and six cars to get out of the way, and it is also conceded that it was the duty of the north-bound crew, under the circumstances, to send out a flagman a sufficient distance ahead to the north to warn trains and that this precaution was neglected. The train dispatcher of appellant was located at Carbondale. He had ordered the conductor „of this north-bound train to “pull the mine,” and knew that the engine and cars would have to be on the south-bound track in order to do the necessary switching there, but he failed to notify the crew of the train on which decedent was employed that the west or south-bound track at the Hallidayboro mine would be obstructed. This was not a meeting point or a customary passing point for these two trains and neither of the crews knew they would meet there. There was an electric signal block eight or ten car-lengths south of the north end of the passing track, which was constructed to work automatically. When there was a train or car south of this block the signal would show a red light to the north, so as tO' keep trains coming from the north warned, but as soon as a car or train passed out of this block to the north the light would show green. When the switch at the north end of the passing track was thrown to allow a train of cars to go in on the passing track the switch light would show red to the north. At the particular time of this accident, however, sufficient time had elapsed after the engine and cars got out of the electric block so that the semaphore light would not warn the oncoming train, and the switch light was not thrown in time to warn the crew of the obstruction. In fact, the trainmen on the south-bound train saw the headlight of the engine before they saw any other indication of obstruction on the track. The evidence tended to show that there was considerable smoke there, caused by a passenger train, which had just gone north. The decedent left his widow and four children, aged 9, 8, 4 and respectively. Twin children were horn after his death, on April 10, 1908.
It is first urged by appellant, as a matter of law, that the members of the two train crews were fellow-servants; that both crews were in what the evidence denominates the “chain gang service,” subject to call to handle any class of freight along the line of the road that the business might call for; that both crews at the time of the accident were engaged in the particular business in hand,—that is, the operation of the St. Louis division of appellant’s road. We do not think, under the evidence in this case, that the crews of the two trains were fellow-servants. “To create that relation between servants they must be directly co-operating with each other in a particular work at the time of the injury, or their usual duties must be such as to bring them into such habitual association as will afford them the power and opportunity of exercising an influence, each upon the other, promotive of their mutual safety.” (Indiana, Illinois and Iowa Railroad Co. v. Otstot,
It is even more earnestly insisted by counsel that the members of the two train crews were fellow-servants under the second branch of the rule. The engineers and conductors of both these trains testified that they knew that north-bound trains frequently crossed the south-bound track at Hallidayboro to take cars from the mine switch trades. There was no evidence to indicate that these train crews had ever passed at this point before or to show the extent of the association in the line of their work previous to this accident. Indeed, the only proof that tends to indicate in any manner any association was that the two train crews were engaged in hauling freight on the same division of a double track railroad. The definition of “ fellow-servant” is for the court. Whether certain employees of a common master fall within the definition is a question of fact, hence whether or not the relation exists is a mixed question of law and fact. (Indianapolis and St. Louis Railroad Co. v. Morgenstern,
In the case of Lake Erie and Western Railroad Co. v. Middleton,
While the facts in this record which would tend to show the relation of the two train crews are not in dispute, even if it be conceded that some of this evidence may tend to prove that the duties of the two train crews brought them into habitual association, that evidence “was not of such a nature that but one conclusion could have been .drawn from it, and therefore the question was properly submitted to the jury.” (Chicago and Eastern Illinois Railroad Co. v. White, supra, on p. 131.) We do not think anything is said in Illinois Steel Co. v. Coffey, supra, Chicago City Railway Co. v. Leach, supra, Chicago and Alton Railway Co. v. Bell,
Our conclusion on the question of fellow-servants renders it unnecessary for us to discuss at length the question raised in the briefs as to whether it was the duty of the train dispatcher of appellant to give the crew of the southbound train notice of the fact that the other train crew was taking out coal cars from the Hallidayboro mine. We deem it sufficient to say on the facts in this case, under the rules of law laid down by this court in Rogers v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co.
No other questions have been raised in this court in the brief and argument of appellant. The questions of fact as to whether the members of the two train crews were fellow-servants and whether the south-bound crew should have been notified by appellant were properly submitted to the jury.
The judgment of the Appellate Court must therefore be affirmed. , '
Judgment affirmed.