*552ON MOTION EOR REHEARING.
Robertson, Associate Justice.The judgment of the court below was reversed on the third assignment of error. That assignment was that the court erred in refusing to give the three special charges asked by appellant. The three special charges present in different phases the same proposition. But one error was committed in rejecting them, and that was sufficiently assigned. That this court erred in considering that assignment, as insisted upon in the motion for rehearing, is not sustained.
In his argument upon this motion for rehearing, counsel for appellee has earnestly urged the court to re-examine the record and reconsider the case. We have done this, and whilst we adhere to the conclusion reached-in the original opinion, that the judgment below should be reversed and the cause remanded for a new trial, we think it would be proper to add a few remarks, attention to which may conduce to an earlier termination of the suit.
It seems to be an undisputed fact that the breaking of the draw-head of the coach in the train upon which Scott was being transported occasioned the wreck in which Scott lost his life. It seems also to be proved that the draw-head was out of repair, and that the coach was improperly placed in the train near the engine. It is also shown that the draw-heads for coaches are not made as strong as those for freight cars. On these facts it becomes a question whether the wreck was caused by the defect in the draw-head or by its being improperly subjected to a strain not contemplated in its construction.
The master is bound to furnish machinery suitable for the work to be done with it. If he furnishes a defective draw-head, and in such use of it as would be proper, if it was not defective, an injury to his servant results from the fact that it is defective, the master is liable, unless the servant knew or might have known of the defect. In such case the master could not escape the liability by proof that the negligence of a fellow-servant of the injured employee contributes to the injury. On the other hand, if the defective draw-head is used by the negligence of a co-employee of the injured servant in a place or for a purpose for which, if it were not defective, it was not furnished by the master or in its construction fitted, and a wreck occurs by the breaking of the draw-head, which would not have broken if it had been sound, is the injury then in legal contemplation caused by the defect in the draw-head or by its improper use?
If Scott was a servant, these questions should be considered. *553There was evidence enough on both sides to make it an issue in the case, whether he was a servant or a passenger. The charges requested by appellant all bore upon this issue, and whether they correctly propounded the law or not, they were sufficient to call the attention of the court below to the defect in the general charge. Under the general charge the jury may have found that Scott was both an employee and a passenger. If a passenger, the jury are advised how to ascertain if the appellant is liable; but if he was not a passenger, the law by which to test appellant’s responsibility for his death is only partially given.
The judgment of the court below was properly reversed, and the motion for rehearing is therefore refused.
Motion for rehearing refused.
[Opinion delivered November 20, 1885.]