delivered the opinion of the court: comparing the two, as the rules of the company required. He was also negligent in ordering his men to board the train and causing the train to be started northward with them on board, when he ought to have known, and if .he had read the order in his possession "would have known, that a collision with the south bound train would almost unavoidably result.
The defense mainly relied uqon at the trial was that Rathwell and the plaintiff’s intestate were fellow-servants of the defendant, and that, for an injury resulting from Rathwell’s negligence, therefore, the maxim respond-eat superior can not be invoked. The court in a series of instructions, of which no complaint seems now to be made, submitted to the jury the question whether Rathwell and the plaintiff’s intestate were fellow-servants, to be determined by them as a question of fact. Other instructions were asked by the defendant holding, as a legal conclusion, that they were fellow-servants, and that for that reason the verdict of the jury should be for the defendant. These the court refused to give, and the principal, and in fact only, question presented by this appeal is, whether the court erred in refusing those instructions.
Rathwell, as it seems, was both conductor of the'train and foreman of the gang of men employed in loading and unloading the cars, and it appears to be conceded that, in the latter capacity, he was vested with complete authority and control, having power to hire and discharge the men at his discretion. It does not seem to be disputed that as foreman he held the position of vice-principal, but it is insisted that his negligence was solely in his capacity of conductor, and that in that capacity he was a fellow-servant with all those employed on or connected with the operation of the train.
If it be important to determine whether his negligence was in his capacity of conductor, or of foreman, or both, that would seem to be, under all the circumstances, a question of fact for the jury, and all questions of fact having been settled adversely to the defendant by the judgment of the Appellate Court, that question is not a subject for consideration here.
But if it be conceded that he was negligent as conductor, only, we are not prepared to hold, as a legal conclusion, that he was a fellow-servant with the plaintiff’s intestate and the other laborers emplojmd to load and unload the train. The general rule recognized by the repeated decisions of this court is, that the question whether different servants of the same master are fellow-servants, within the legal signification of that term, is a question of fact, to be determined by the jury from all the circumstances of each case. Thus, in Chicago and Northwestern Railway Co. v. Moranda, 108 Ill. 576, the circuit judge had instructed the jury that, under the facts appearing in that case, a section foreman having charge and oversight of the repairs of a certain portion of the defendant’s track was not a fellow-servant with the engineer and fireman running one of its locomotive engines, and it was held that the instruction was erroneous, the rule being, that whether such persons were so co-operating or consociating at the time of the injury as to exempt the common master from liability for an injury received by one in consequence of the negligence of the other, was a question of fact for the jury, and not of law for the court.
The rule that while the definition of fellow- servant may be a question of law, the question whether a given case falls within that definition is always one of fact, is supported also by the following decisions : Indianapolis and St. Louis Railroad Co. v. Morgenstern, 106 Ill. 216 ; Lake Erie and Western Railroad Co. v. Middleton, 142 id. 550; Pullman Palace Car Co. v. Laack, 143 id. 242.
It follows that the instruction asked by the defendant, that if the plaintiff’s intestate was a shoveler in the defendant’s employ on one of its construction or work trains, and that while riding upon the train he was injured by the negligence of the conductor, he and the conductor were fellow-servants, and the other instructions laying down a similar rule, were properly refused.
To support the contrary view, the defendant relies mainly upon the case of Abend v. Terre Haute and Indianapolis Railroad Co. 111 Ill. 202. In that case the plaintiff’s intestate and others had been sent on a wrecking train to remove from the track a wreck caused by a collision which had happened on the preceding day. The deceased, instead of taking his seat in the wrecking car, as he should have done, rode on the engine, in contravention of an express rule of the company, and took his seat on the fireman’s side, immediately in front of the fireman. While he was thus riding the engine collided with another train, and killed him. A.t the trial the court directed a verdict for the defendant. That ruling was affirmed by the Appellate Court, and on a further appeal to this court the judgment was affirmed by a divided court, the principal ground upon which this court sustained the ruling of the trial court being, that the evidence wholly failed to show the exercise of due care by the deceased at the time he was killed. The opinion goes further, however, and sustains the ruling of the trial court on the additional ground that under the peculiar facts in that case the deceased and the employee who, for the time being, was acting as engineer and conductor, and through whose negligence the collision took place, were fellow-servants. It is perhaps worthy of remark that the only authorities' referred to in the opinion in support of the proposition that the deceased and the engineer were fellow-servants, were decided when this court had the power, in cases of this character, to con sider and sustain errors of fact. We do not think that this case can be given the effect of establishing a rule contrary to that laid down in the other cases above cited.
The court having submitted the question as to whether the deceased in this case and the conductor were fellow-servants, to the jury as a question of fact, and the jury having found that they were not, the contention that the verdict was contrary to the evidence was a proper one to be addressed to the Appellate Court, but it is one which the statute precludes us from entertaining or considering.
We, have carefully examined all the defendant’s refused instructions, and are of the opinion that they were properly refused, and no other ground for the reversal of the judgment being urged, it will be affirmed.
Judgment affirmed.