delivered the opinion of the Court:
The rule in this State is, where one servant is injured by the negligence of his fellow-servant, their duties being such as to bring them into habitual association, so that they may exercise a mutual influence upon each other promotive of proper caution, and the master is guilty of no negligence in employing the servant causing the injury, the master is not liable. Stafford v. Chicago, Burlington and Quincy Railroad Co. 114 Ill. 244; Chicago and Northwestern Ry. Co. v. Moranda, 93 id. 302; Chicago and Eastern Illinois Railroad Co. v. Geary, 110 id. 383; Chicago and Northwestern Ry. Co. v. Snyder, 128 id. 655; Rolling Mill Co. v. Johnson, 114 id. 57; Chicago and Alton Railroad Co. v. Hoyt, 122 id. 369. It follows, and is recognized by these cases, that where one servant is injured by the negligence of another servant of the common, master, but not within this description of fellow-servant, the master is liable. See, also, Chicago and Alton Railroad Co. v. May, Admx. 108 Ill. 288; Chicago and Northwestern Ry. Co. v. Snyder, 117 id. 376; Chicago and Alton Railroad Co. v. Kelly, 127 id. 637.
In all actions for negligence the burden is upon the plaintiff to allege and prove such negligent acts of the defendant as will entitle the plaintiff to recover. Chicago, Burlington and Quincy Railroad Co. v. Harwood, 90 Ill. 425; Chicago, Burlington and Quincy Railroad Co. v. Gregory, 58 id. 272; Blanchard v. Lake Shore and Michigan Southern Ry. Co. 126 id. 416; Patterson’s Ry. Accident Law, sec. 373, and cases cited in note. The words “defendant’s servants,” clearly include any and all of defendant’s servants, and so, necessarily, it is not sufficient, here, merely to allege and prove an injury to the plaintiff from the negligence of the defendant’s servants generally, for it is just as consistent with that allegation and proof that the defendant is free of liability as that it is liable. The omission to allege that the defendant’s servants causing the plaintiff’s injury were not the fellow-servants of the plaintiff, within the description of such servants, supra, was not cured by verdict, because the denial of the allegations of the declaration imposed no duty upon the plaintiff in that respect. When he had proved that he was injured by the negligence of the defendant’s servants, he had proved all that he had alleged. But, since the defendant was not liable merely because the plaintiff was injured by the negligence of the defendant’s servants, he was entitled to contest and disprove that its servants by whose negligence the plaintiff was injured, were such servants as rendered it liable to the plaintiff for their negligence.
The rule being, that nothing will be presumed after verdict but what must have been necessarily proved under the averments of the declaration, the court erred in overruling the motion in arrest. (Chichester v. Vass, 1 Call, 83; Bartlett v. Crozier, 17 Johns. 457.) Moreover, any presumption that might, by any possibility, have otherwise been indulged to the effect that the plaintiff was required to make proof that the servants causing the injury were not the fellow-servants of the plaintiff, is precluded by the first instruction given at the instance of the plaintiff, which reads as follows:
“On the part of the plaintiff you are instructed, that if you believe, from the evidence, that the plaintiff was in the employ of the defendant, and that while in such employ, and in the use of due and ordinary care and caution for his personal safety, the plaintiff was injured in manner and form as charged in the declaration, by reason- of the negligence of the defendant,, then you will find the defendant guilty.”
The jury, obeying this instruction, were bound to find for the plaintiff if the plaintiff was injured “in manner and form as charged in the declaration.”
For the error indicated, the judgments below are reversed, , and the cause is remanded-to the circuit court, with leave to the plaintiff, if he shall be so advised, to amend his declara- • tion, and for a trial thereafter de novo.
Judgment reversed.