dissenting.
I do not agree to the conclusion reached by my associates, that the giving of the instruction quoted in the opinion of the majority was necessarily prejudicial error; and will briefly state my reasons for such dissent.
*683I think it is true that the instruction, if taken alone and without qualification, would be insufficient as not fully stating the rule of negligence as applicable to cases of this kind. It must be conceded that the negligence of the “ servants and employes” of the defendant would be its own negligence, for it acts only through its servants and employes. It can act in no other way. In addition to the instruction above referred to, the court, upon the request of defendant in error, gave instruction number’ four, and instruction number two given upon its ,own motion, both of which we here copy:
“4. You are instructed that the negligence of the defendant that would make it liable must be the negligence of the company itself or some superior agent who stood in place of the company as between it and the deceased Sullivan; and if you find that a car repairer, as a fellow laborer, worked with Sullivan, who had more experience and on that account was showing Sullivan how to do the work, was negligent and this negligence caused or contributed to the injury, the defendant would not be liable.
“ 2. The law of negligence as applied to this case is given in the instruction given at the request of the parties, to such an extent that but little need be added. The defendant railroad company is liable for the negligence of its servants superior in employment to the deceased at the time of his death,, if the negligence of such superior servant caused the injury complained of and there was no contributory negligence on the part of deceased; but the defendant would not be liable for negligence of a fellow servant of deceased. A fellow servant, within the meaning of this proposition, means an associate employe with the deceased, in the same line of employment with the deceased, and without authority over the deceased more than the deceased had over such fellow servant in the work in which deceased was engaged at the time of the injury. The authority of a fellow servant to instruct another fellow servant less ex*684perienced as to the duties and dangers of the employment of itself does 'not prevent their being fellow servants within the meaning of the rule of law above mentioned.”
It is a well established rule of law, and one which has been repeatedly recognized in this state, that the whole of the instructions given to a trial jury must be considered together, and if none of them mistake the .law as applicable to the case on trial and they are susceptible of being harmonized, when so considered, they could not mislead the jury and a new trial will not be granted. Stated differently, if an instruction only partially states the rule to be applied, it will not be held to constitute reversible error if the rule is fully and correctly stated in another portion of the charge, and the whole instruction, when thus considered together, presents a correct and consistent statement of the law. (Parish v. The State, 14 Neb., 67; S. C. & P. R. R. Co. v. Finlayson, 16 Id., 584; Gray v. Farmer, 19 Id., 71.)
Applying this well recognized rule to this case, I can see no difficulty growing out of the instructions. The first one instructed the jury that if they found that the injury was caused by negligence of defendant, its servants or employes, and not by that of the deceased, the plaintiffs in the action should recover, and by the others they were informed what servants and employes were referred to and that all others should be excluded. I think this could work no prejudice.