The opinion of the Court was delivered by
Mr. Justice Gary.This action was commenced on the 26th of April, 1895, and was tried before his Honor, Judge D. A. Townsend, at the November, 1896, term of the Court for Charleston County. The jury rendered a verdict in favor of the plaintiff for $690.20. The defendant has appealed to this Court on exceptions which, together with the complaint, answer, and charge of the presiding Judge, will be set out in the report of the case. The third exception was abandoned.
1 The exceptions will not be considered seriatim, as they raise practically but three questions, which will be hereinafter stated. The first question raised by the exceptions is: Was there error on the part of the presiding Judge in excluding testimony offered in behalf of the defendant for the purpose of showing that the injury was caused by the negligence of a fellow-servant, “on the ground that it referred to the defense of coemployee, which could not he raised under the pleadings?” The complaint alleges negligence in the following particulars, to wit: 1st. That the yard master of said company, who is charged with the *93direction and control of the movement of all switch engines, and the making up of trains within the said yard limits of the defendant, was, at the time of the said accident, carelessly and negligently absent from his post. 2d. That the hostler and switchman in control of the switch engine, to which the said baggage car was attached, carelessly and negligently uncoupled it from the tender while moving at a rapid and dangerous speed down the main line, on which the plaintiff’s car was. 3d. That there was no brakemán or other attendant on or in charge of the said baggage car, as was customary in the making up of trains. The “Case” shows that the following took place while Mr. C. S. Gadsden, a witness for the defendant, was being examined by defendant’s attorney, to wit: “Q. Something was said about the yard master; is it his duty to be present at the making up of trains? A. He may or may not, as he sees proper. Q. Under whose control are all these people? (Question objected to, on the ground that it referred to the defense of coemployee, which could not be raised under the pleadings. Objection sustained. Ruling excepted to.)” Not only was the testimony which the defendant offered to introduce admissible, on the ground that it was responsive to the allegations of the complaint, that the yard master was “charged with the direction and control of the movement of all switch engines and the making up of trains within the yard limits of the defendant,” but it was also competent for the purpose of showing a failure of negligence on the part of the defendant by establishing the fact that the injury was caused by the negligence of a fellow-servant. Sec. 671 of Pom. Code Remedies contains the following: “* * * Kvidence which is in its nature affirmative is often confounded with defenses which are essentially affirmative, and in avoidance of the plaintiff’s cause of action, and is, therefore, mistakenly regarded as new matter, requiring to be specially pleaded, although its effect upon the issues is strictly negative, and it is entirely admissible under an answer of denial. In other words, in order that evidence may be proved under a *94denial, it need not be in its nature negative; affirmative evidence may often be used to contradict an allegation of the complaint, and may, therefore, be proved to maintain the negative issue raised by the defendant’s denial. One or two familiar examples will sufficiently illustrate the propositions. In certain actions, property in the plaintiff in respect of the goods which are the subject matter of the controversy is an essential element of his claim. His complaint, therefore, avers property in himself; the allegation is material, and is, of course, put in issue by the general or specific denial. To maintain this issue on his part the plaintiff may give evidence tending to show that he is the absolute owner or has the requisite qualified property. The defendant may controvert this fact in two modes. He may simply contradict and destroy the effect of the plaintiff’s proof, and in this purely negative manner procure, if possible, a decision in his own favor upon this issue. The result would be a denial of the plaintiff’s recovery by his failure to maintain the averment of his pleadings; but the jury or court would not be called upon to find that the property was in any other person. The decision would simply be, that the plaintiff had not shown it to be in himself. On the other hand, the defendant, not attempting 'directly to deny the testimony of the plaintiff’s witnesses and to overpower its effect by direct contradictory proof, may introduce evidence tending to show that the property in the goods is, in fact, in a third person. This evidence, if convincing, would defeat the plaintiff’s recovery. It would be affirmative in its direct nature, but its ultimate effect in the trial of issue raised by the answer would be to deny the truth of the plaintiff’s averment. Such evidence, although immediately affirmative, would still, for the purpose of determining the issue presented by the pleadings, be negative. * * *” Section 675 of the same author contains the following, to wit: “In actions for injuries to person or property, alleged to have resulted from the defendant’s negligence, he may prove, under a general denial, that the wrong was *95caused by the negligence of third persons, not agents of the defendant, and for whom he was not responsible. * * *” In the case of Sheehan v. Prosser, 55 Mo. Ap., 569, Mr. Justice Biggs, in delivering the opinion of the Court, said: “The defense that the plaintiff was injured through the negligence of a fellow-servant was available to the defendants without having been specially pleaded. Proof of that fact necessarily disproved the averment that the plaintiff was injured through the negligence of the defendants.” This view is sustained by Adams Ex. Co. v. Darnell, 31 Ind., 20. The authorities are, however, conflicting, as will be seen by reference to the case of Conlin v. S. F. & S. J. R. R. Co., 36 Cal., 404, which sustains a contrary doctrine. The reason why testimony is admissible, under a general denial, to prove that the injury was caused by the negligence of a fellow-servant, is because its tendency is to show that there was no negligence whatever on the part of the defendant. On the other hand, the reason why it is necessary to set forth in the answer the defense of contributory negligence on the part of the plaintiff, is because testimony showing such contributory negligence does not disprove the allegations of the complaint that the injury was caused by the negligence of the defendant. The defendant, by setting up in his answer the defense of contributory negligence on the part of the plaintiff, does not attempt to escape liability by showing a failure of negligence on his part, but because the plaintiff has done that which prevents a recovery against him, although he, the defendant, may have been guilty of negligence. Such facts would constitute an affirmative defense of which the defendant could not get the benefit unless it was set up in the answer. The exceptions raising the first question are sustained.
2 The second question raised by the exceptions is: Was there error on the part of the presiding Judge in submitting to the jury the question, whether the plaintiff and the employees of the defendant, through whose negligence the injury to the plaintiff is alleged to have been *96sustained, were fellow-servants? Whether an engineer, brakeman or switchman is, when exercising his ordinary duties, a fellow-servant with a car cleaner, is a question of law. But whether, in a particular case, either of them was engaged in performing certain acts which the law requires of the master, and which would prevent them from being fellow-servants, is a question of fact, to be determined by the jury. The question as to who are fellow-servants is a mixed question of law and fact. It is for the Court to define the relation of fellow-servants, but it is for the jury to determine whether the employees in a particular case come within the definition. His Honor seems to have been of the opinion that, whether the employees of the defendant sustained toward each other the relation of fellow-servants, was a question solely for the consideration of the jury, and in this there was error. The material changes made by sec. 15, art. IX., of the Constitution of 1895, as to the rights of a railroad employee sustaining injury through the negligence of a coemployee, render an extended discussion of the second and third questions, raised by the exceptions, unnecessary. The exceptions raising the second question are also sustained.
3 The third question raised by the exception is: Was there error on the part of the presiding Judge in his charge to the jury as to the rule for determining when the relation of fellow-servants exists between coemployees? When persons are employed in a common undertaking, all sustain toward each other the relation of fellow-servants when exercising only the ordinary duties of their employment, even when they can not see each other, or are working apart and not in conjunction. But if an employee sustains an injury through the negligence of a coemployee, while such coemployee is performing the duties of the master, the master cannot defeat his recovery on the ground that they are fellow-servants. His Honor’s charge did not conform to these principles, and was, therefore, erroneous.
It is the judgment of this Court, that the judgment of *97the Circuit Court be reversed, and that the case be remanded to the Circuit Court for a new trial.