delivered the opinion of the court:
Where a servant brings his action against the master for personal injuries alleged to have been caused by the negligence of a co-servant, and the master denies a right of recovery, claiming the servant injured is a fellow-servant of the one causing the injury, it is the province of the court to state the rule that constitutes fellow-servants, and it is a question of fact,' for the jury to determine from the evidence, whether the different servants are fellow-servants, within the rule. (Indianapolis and St. Louis Railroad Co. v. Morgenstern, 106 Ill. 216; Chicago and Northwestern Railway Co. v. Moranda, 108 id. 576; Lake Nine and Western Railroad Co. v. Middleton, 142 id. 550; Pullman Palace Car Co.v. Laack, 143 id. 242.) In such case, it is important that the rule should be correctly stated and the question of fact submitted to the jury for determination under proper instructions.
The first instruction given for the plaintiff wholly disregarded the theory of the defense, and determined the relation of the plaintiff and the conductor as fellow-servants as a question of law, leaving the jury to find, alone, whether the injury to plaintiff was caused by the negligence of the conductor. In this there was error.
No evidence was offered to show that the servants of the defendant in charge of the train were incompetent, careless or unskillful, and in the absence of such evidence there was nothing on which to base the second instruction. It was not to be presumed because of the happening of the accident, alone. It was error to give the second instruction for the plaintiff.
The objections made to other of plaintiff’s instructions, under the evidence, are not tenable.
There are certain duties of the master that are nonassignable,—that is, when delegated to another that other occupies the relation of vice-principal, for whose negligence and want of care the master is responsible. Among such duties, with the assumption by the servant of the ordinary hazards in such case, are, that he shall exercise reasonable care to see that tools, appliances and machinery are reasonably safe, and must use reasonable care that the place where the servant works is reasonably safe; to exercise ordinary care in the selection of superintending fellow-servants, and where he has notice of the unfitness of a fellow-servant, to discharge him; to inform the servant of special dangers of his situation, and of the machinery and appliances with and about which he is employed, where he is uninformed, and, within the rules we have stated in Monmouth Mining and Manf. Co. v. Erling, 148 Ill. 521, to use reasonable care to keep in repair machinery, tools and appliances with which and where the servant is employed. Almost all other duties are assignable, and where the master has complied with his non-assignable duty of using ordinary care in the selection .of a servant to whom such duties are intrusted, for an injury occurring through such servants neglect to another servant the master is not responsible, because their relation is that of fellow- servants. One servant may be, in relation to a co-servant, a vice-principal in one relation and a fellow-servant in another, the particular relation depending on the particular duties he is discharging at the time. It is not for the court to determine whether the plaintiff, in relation to Rathwell, was a fellow-servant with him, as conductor. Rathwell also discharged the duties of foreman, and, under proper instructions, it would be a question for the jury to determine if there was negligence on the part of Rathwell, and if so, in which relation it occurred. . The seventh of defendant’s refused instructions omitted all reference to the duties of Rathwell as foreman, and sought to determine, as .a matter of law, that the injuries resulted from his acts as conductor. In this it was erroneous, and it was not error to refuse the same.
For the errors in giving plaintiff’s first and second instructions the judgments of the Appellate and circuit courts are reversed, and the cause remanded to the circuit court of Jackson county.
Reversed and remanded.