This is a suit by a brakeman, an employe of the defendant company, for an injury to him while in thе line of his duty on a train that was wrecked. He was severely injured, and permanently in one leg and one of his shoulders, so as to be unable to perform manual labor. The evidence tends to show that the train on which the plaintiff was at work as brakeman was wrecked by a broken wheel; that
The instructions, as we think, state well and fairly the law of the case, and no point is mаde on them in the brief of appellant’s counsel; but the contention of the defеndant company is that, if there was negligence, it was the negligence of the cаr-inspector, and he was the fellow servant of the respondent. If this contention is truе, the respondent cannot recover, and this case should be reversed. As to whо are fellow servants, there have been a great many and great variety of dеcisions, and it would serve no useful purpose to review them. However various, the decisions agreS that the weight of authority is that, in order to constitute servants of one mаster 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 оf the department in which they work; that they labor together in such personal relatiоns that they can exercise an influence upon each other promotive of proper caution in respect of their mutual safety; that they shall be at thе 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 conassociation, as that 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. Railroad Co. v. Kelly,
It is contended, also, by appellant that the damages are excеssive. On that point tbe jury were properly instructed. It is peculiarly tbe province оf the jury to estimate tbe damages in this class of cases; and they doubtless took into consideration, what they were legally authorized to do, that the respondent was lamed and deformed in one leg for life, and permanently disabled in one shoulder, so that be was wholly rendered unable to perform manual labor; that be was rendered entirely helpless by tbe accident; that be was neglected for more than two days before bis wounds were dressed; and that be suffered unnecessarily in mind and body from bis injury. The damages are seemingly heavy, but, in view of tbe facts of tbe case, we do not think they are sо excessive as to justify a renewal. Therefore, we cannot say that the jury were influenced by passion or prejudice in assessing the damages at the amount they did. We think, therefore, the judgment should be affirmed. Judgment affirmed.