117 F. 233 | 8th Cir. | 1902
after stating the case as above, delivered the opinion of the court.
As the defendants did not, by any pleading or otherwise, before the trial, raise any question of variance in respect to their own proper names, but in their answer adopted as their own the names by which they were designated in the complaint, it was too late upon the trial to first make that objection.
The question of whether warning of the coming blast was given to the plaintiff was fairly left to the jury, with instruction that if he had such warning, and failed to go to a place of safety, he was not entitled to recover.
The argument principally relied on by defendants’ counsel—namely, that if the plaintiff was not warned of the coming danger, the failure to give such warning was the negligence of a fellow servant—cannot be maintained upon the pleadings and evidence in this case. To permit the application of the fellow-servant doctrine, the injured servant must at the time of the injury not only be serving the samé master, but be engaged in the same employment with the negligent servant who caused the injury. Wood, Mast. & Serv. § 435. The
3. Who are fellow servants, see notes to Railroad Co. v. Smith, 8 C. C. A. 668; Railway Co. v. Johnston, 9 C. C. A. 596; Flippin v. Kimball, 31 C. C. A. 286.
See Master and Servant, vol. 34, Cent. Dig. § 383.