Appellees seek to recover damages for an injury resulting from the death of their son, a young man who had nearly reached majority, which it is alleged was caused by the negligence of the servants of appellant, and by the negligence of appellant in keeping in its service an engineer alleged to have been unfit for the place. There is, however, no evidence tending to show that the engineer in charge of the train at the time the young man was injured was not in every respect a competent, careful, and sober man.
The person injured was in the service of the railway company in the capacity of section hand, and it seems at work on the section when the injury occurred.
' It was desired to place on a side track at Ogden some cars, but it needed some repairs before this could be done, and with a view to the making of them the deceased was directed to go westwardly down the main track to a hand car to get spike maul, spikes, and gauge. It seems that the train with tender in front started in that direction and that the deceased went on it until it stopped short of the place to which he was going. He then left the tender and started on his way down the track, but for some purpose, probably to tie his shoe, stopped on the track but a short distance from the tender, which soon moved slowly to the westward and ran over him while running at a very slow rate of speed.
This is the statement of the case most favorable to the appellees that can made from the evidence, while the evidence offered by appellant tends to show that deceased was injured while attempting to get on the front end of the tender while in motion.
There is some conflict in the evidence whether the bell was ringing or other signal given of the running train, but it is not shown that the injury occurred at a place where the law requires such signals to be given for the protection of any person. A public road was but a short distance to the east, but the moving train had crossed that and was moving west. Under this state of facts it is urged that there was no sufficient evidence to sustain a verdict for the plaintiffs and that the court erred in refusing to grant a new trial based on this ground.
That the deceased and those engaged in operating the train were fellow servants is settled by the former decisions made in this State. His death is not shown to have been brought about by any defect in the track or cars which would fix liability on the master for injury to a servant. It is not shown that the engineer or any other person engaged in operating the train was incompetent or for any reason unsuitable to discharge the duties of the position he held, nor even that the engineer was negligent in the particular instance.
*613Under this state of facts we think the motion for new trial should have been granted. Had it even been shown that the engineer was negligent on the particular occasion this of itself would not be sufficient evidence to fix liability on appellant on the ground that it had not used due care in selecting, employing, or retaining him. The evidence, however, tends to show that the deceased was on the track so near to the tender that the engineer could not see him. There was no necessity for him to be there, and on the case made by the evidence it would seem that his own negligence contributed to the injury and would bar an action by him had he survived, and what would bar an action by him must operate as a bar to afi action brought by his parents for an injury resulting in his death.
The new trial should have been granted, and for the error of the court below refusing it the judgment will be reversed and the cause remanded.
Reversed and remanded.
Opinion February 5, 1889.