On Motion eor Rehearing.
Mr. Justice Beandelivered the opinion.
3. Where, in a personal injury case, it clearly appears from plaintiff’s testimony that the injury was due to the negligence of a fellow servant, he should be nonsuited, although such negligence is'not pleaded as a defense, for the same reason that he should be if his proof shows that the injury was due to contributory negligence: Tucker v. Northern Term. Co. 41 Or. 82 (68 Pac. 426). But there is no such question in this case. The bill of exceptions does not purport to contain all the evidence, and the court below ruled — we must assume, correctly — that there was evidence tending to show that the death of plaintiff’s intestate was not due to the negligence of Hylander, a fellow servant, but to that of Jones, who stood in the place of and represented the master.
*4854. There was a controversy as to whether there was any negligence at all, and, if so, whether it was that of Jones or Hylander. The court charged the jury that, if the accident was due to the negligence of Jones, plaintiff could recover, but, if to that of Hylander, he could not. The latter instruction was error, because it submitted to the jury a defense pot pleaded, and it is immaterial whether it was based upon testimony given by the plaintiff or the defendant. The statement in Wild v. Oregon Short Line Ry. Co. 21 Or. 159 (27 Pac. 954), that “the negligence of a co-servant with plaintiff engaged in the same general undertaking could not be said to be the negligence of the defendant,” was plainly by way of argument only, and was not a decision of a point involved in the case. Higgins v. Missouri Pac. Ry. Co. 43 Mo. App. 547, was not overruled, though disapproved, by Sheehan v. Prosser, 55 Mo. App. 569. The former was a decision by the Kansas City Court of Appeals and the latter by the St. Louis Court of Appeals. Both courts are of equal dignity and rank, and have simply taken opposite views upon a disputed question. Reversed : Rehearing Denied.