The opinion of the 'Court was delivered by
Mr. Chief Justice McIver.This action was brought by the plaintiff to recover damages for certain injuries received by plaintiff while in the employment of the defendant company, through the alleged negligence of the agents and servants of said company. The defendant in its answer sets up two defenses: 1st, a general denial of all the allegations of the complaint except as to the corporate capacity of the *453defendant company; 2d, contributory negligence on the part of the plaintiff. The case came on for trial before his Honor, Judge Ernest Gary, and a jury, and at the close of the testimony 'on the part of the plan-itiff a motion for a non-suit was made on the ground1 that there was no testimony tending to show negligence. The motion was overruled, the Circuit Judge holding that' there was evidence sufficient to ■carry the case to the jury. The defendant then introduced its testimony, and the case went to the jury under the charge of the Circuit Judge, which is set out in the “Case,” and the jury having found a verdict in favor of the plaintiff, and judgment having been entered thereon, the defendant appeals upon the several exceptions set out in the record. The ■charge of the Circuit Judge as well as appellant’s exceptions should be incorporated by the Reporter in his report of this ■case.
1 It will be observed that all of these exceptions, except the first two, impute error to' the. Circuit Judge in failing to instruct the jury that, notwithstanding the change in the law, effected by the provisions of sec. 15, of art. IX., of the present Constitution, with respect to the right of an employee to recover from a railroad company damages for injuries sustained by reason of the negligence of a fellow-servant, yet a railroad company could still, by way of defense, show that the fellow-servant whose negligence caused the injury complained of was “engaged in the same department of labor with the plaintiff.” In the first place, there was no request that the jury should be so instructed; but, in the second place, the conceded fact is that the injuries complained of were sustained by the plaintiff while engaged, along with some sixteen or eighteen other employees, in loading fiat cars, while moving slowing along the track, with iron or steel rails, and the testimony tended fo' show that the injury sustained by the plaintiff was caused by the failure of Lune Walker to countermand the order to throw the rail on the car in time for the plaintiff to escape from the falling rail. The undisputed fact is that thegang of hands engaged *454in loading the cars were under 'the control and supervision of Capt. Thomas Sumner, and that Lune Walker had been appointed “caller,” as it is termed, whose duty it was to give the orders to the other hands- when to take hold of the rail, when to raise the rail, and when to throw it on the passing' car; and 'Capt. Sumner testifies that it was the duty of the other hands to obey the directions of the “caller.” It is true, that there was discrepancy in the testimony as to' who appointed Walker as “caller” — whether it was done by Sumner or -by the other hands — 'but we do not see what difference this would make. If appointed by Sumner, then it is clear that Walker was acting under the authority of the defendant company, as it is not disputed that Sumner bad the general supervision of the work; and if he was selected by the other hands, who- voluntarily subjected themselves to' his orders, Walker would still be a person “having a right to' control or direct the services” of the plaintiff and the other hands with whom he was working- — -at least, so- far as the particular work in which he was engaged, at the time the injury was sustained, is concerned. For the provision of the Constitution is that: “Every employee of any railroad corporation shall have the same rights and remedies for any injury suffered by him from the acts or omissions of said corporation or its employees as are allowed by law to- other persons not employees, when the injury results from the negligence of a superior agent or officer, or of a person having a right to' control or direct the services- of a party injured, and also' when the injury results from the negligence of a fellow-servant engaged in another department of labor from that of the party injured, or of a fellow-servant on another train of cars, or one -engaged about a different piece of work.” Because, if Sumner, who unquestionably had the control and supervision of the hands engaged in loading the ears with the iron or steel rails, instead of appointing the “caller” himself, allowed the other hands to do- so, then when Walker, the “caller,” gave the directions 'to- the hands as to how and where the rails should be handled, such directions, in fact, *455proceeded from Sumner, through Walker; and if the plaintiff’s injuries resulted from the negligence of Walker in giving such directions, then, though Walker was a fellow-servant of plaintiff and engaged in the same department of labor, yet the defendant company was not entitled to the defense growing out of the fact that plaintiff and Walker were fellow-servants, because Walker was a person having the right “to direct the services” of the party injured. For this reason, also, there was no error on the part of the Circuit Judge in omitting to. instruct the jury, as it is claimed in exceptions 3, 4, 5, 6, 7, 8 and 9, he should have done, and, therefore, these exceptions must be overruled.
2 The first and second exceptions impute error to. the Circuit Judge in refusing the motion for a nonsuit. We agree with the Circuit Judge that 'there was some testimony tending to show negligence on the part of the defendant company through its servants or agents, and hence there was no. error in refusing the motion for nonsuit. Indeed, these two< exceptions seem from the argument of counsel to rest upon the theory, already disposed of, that the negligence, if any, was that of Walker, and he being a fellow-servant with plaintiff, engaged in the same department of labor, sudi negligence cannot be imputed to the defendant company, even under the provisions of the present Constitution. This theory, as we have seen, is not well founded, and, therefore, these exceptions cannot be sustained. It seems to us that the true construction of the constitutional provision above referred to' is this : while it does not entirely deprive a railroad company, in a case like the present, from availing itself of the previously well recognized defense that the injury complained of was the result of the negligence of a fellow-servant, for which the company is not responsible, yet it does confine such defense within narrower limits than had been previously recognized. For it will be observed that the provision in question sets out with the declaration that every employee of a railroad company shall have the same rights and remedies for any injury sustained by him from the acts *456or omissions of such company “or its employees” — whether fellow-servants or not — as are allowed to a person who is not an employee of such company; and if the section had stopped at that point, then the effect, manifestly, would1 have been to entirely deprive a railroad company of the right to set up as a defense to' an action like this, that the injury complained of resulted from negligence of a fellow-servant of the plaintiff, for which the company was not responsible. But the section does not stop at the point indicated, and, on. the contrary, goes on to show in what cases an employee shall have the same rights and remedies as a person not an employee, as follows: ist. Where the injury results from the negligence of a superior officer or agent. 2d. Where it results from the negligence of a person having a right to control or direct the services of the party injured. 3d. When it results from the negligence of a fellow-servant engaged in another department of labor, or on another train of cars, or one engaged in a different piece of work. So that, in all other cases not falling under either of the classes above indicated, the law upon the subject of the defense of fellow-servant remains the same as it was before.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.