delivered the opinion of the court:
The defendant in error urges these three propositions: First, that the plaintiff assumed the risk; second, if injured by the negligence of an employee of the defendant, he and that employee were fellow-servants; and third, the cause of action had been fully adjusted and released to the defendant.
That the plaintiff assumed the risk of the act of other servants of the defendant which caused his injury was a matter of defense. We do not understand counsel to deny that the act of pushing the cars against those which the plaintiff was attempting to couple, without any signal or notice to him, was an act of negligence. An employee can only be held to assume risks of which he has express or implied notice, and it cannot be said that one servant assumes the risk of being injured through the negligence of another, not a fellow-servant, unless he has knowledge of the habitual or customary negligence of such other servant. Therefore, even though the evidence showed, without contradiction, that the cars were thrown upon the side-track in the manner alleged in pursuance of a usual custom, still, unless it was also conceded or shown, without contradiction, that the plaintiff knew of that custom, he could not be legally held to have assumed the risk. On both of the foregoing questions the evidence in this record is conflicting, and therefore the jury should have been allowed to say whether the plaintiff did assume the risk or not. Whether he had released the cause of action set up in his declaration on the issue made was also a matter of defense, and, the evidence being conflicting, a question for the jury.
As to the question of fellow-servants, it has long been the settled rule of this court that the servants of a common master, to be co-employees so as to exempt the master from liability on account of injuries sustained by one resulting from the negligence of the other, must be directly co-operating with each other in a particular business, or that their usual duties bring them into habitual association so that they may exercise a mutual influence upon each other promotive of proper caution. (Chicago and Alton Railroad Co. v. O’Brien, 155 Ill. 630, and cases cited.) The definition of fellow-servants is for the court. Whether employees of the common master fall within that definition is a question of fact, hence whether or not the relation exists is a mixed question of law and fact. (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; Mobile and Ohio Railroad Co. v. Massey, 152 id. 144.) The burden of proof to establish the relation is upon the defendant, —and that, even though the plaintiff alleges the negative in his declaration. (Chicago and Alton Railroad Co. v. House, 172 Ill. 601.) The question whether the relation of fellow-servants exists in a given case is always one for the jury, unless the facts admitted or proved beyond dispute show the existence of the relation within the foregoing definition, when it becomes a question of law. (Chicago and Eastern Illinois Railroad Co. v. Driscoll, 176 Ill. 330.) We held in that case, where the evidence is conclusive and uncontradicted and reasonable minds must reach the same conclusion on the facts, negligence becomes a question of law; and on the same principle, “whilst, as a general rule, the question as to whether the relation of fellow-servants exists is one of fact, yet where the facts are conceded or where there is no dispute whatever as to the facts, and they show, beyond question, that the relation of fellow-servants exists, then the question may become one of law.”
The Branch Appellate Court upon both appeals of this case seems to have understood it to be controlled by the Driscoll case, and that authority is chiefly relied upon by counsel for defendant in error to sustain the judgment below. When the facts in that case are considered and compared with the undisputed testimony of the plaintiff and other witnesses in this, the cases are manifestly entirely dissimilar. In the Driscoll case there were two switching crews, one known as “Hurd’s crew” and the other as “Ward’s.” Driscoll had been a member of both crews and was familiar with their work and the yard and tracks, but at the time of his injury was working with Ward’s crew. The duties of the two crews were the same, —that is, both crews at times performed the same duties. In stating the facts of that case we said: “Within the limits of the yard the duties of the two crews were identical and performed at the same time. Each crew consisted of five men: an engineer, a fireman, a foreman and two helpers. One member had the duty of making couplings in the front part of the train, open switches ahead of the engine and repeating to the engineer signals from the rear. It was the duty of another member of the crew to act as rear man. His duties were to go to the rear end of the train on a repair track to see that all cars were properly coupled and the train in proper condition to be moved, to give signals from the rear and close switches behind the train. These duties were performed by the foreman and helpers indiscriminately. Driscoll had frequently acted as rear man and was performing those duties on the evening of the accident. There is no dispute about these facts, and they appear from the plaintiff’s evidence and are uncontroverted.” In the present case there were not only two switching crews, but their duties were altogether different. One operated an engine at the east end of the yards, making up and taking out trains of freig'ht cars at that end; the other operated an engine for an entirely different purpose oné-half mile distant, at the other end of the yards, taking cars from side-tracks on the south and placing them on the north. There is no evidence in this record which can properly be said to be conclusive of the fact that the two crews co-operated with each other in the performance of their duties. Neither is it conceded or undisputed that their usual duties brought them into habitual association with each other. In other words, upon the facts and circumstances proved in this case showing the relation of the two switching crews, their duties and the manner of performing them, all reasonable minds would not agree that the members of the two crews were co-operating with each other in a particular business, or that their usual duties brought them into habitual association so that they might exercise a mutual influence upon each other promotive of proper caution.
It is not for us to say how a jury would or should have found the facts material to the plaintiff’s case if they had been submitted to them. We deal with the single issue, was there any competent evidence in the record properly tending to support the material allegations of plaintiff’s declaration produced upon the trial. That question must be decided in the affirmative. It was therefore error for the trial court to take the case from the jury and enter judgment against the plaintiff below for costs, and the Appellate Court erred in affirming that judgment. The latter judgment will accordingly be reversed and the cause remanded to the superior court for another trial.
Reversed and remanded.