Although the plaintiff’s intestate was in the employment of the Pittsburg, Cincinnati & St. Louis Company at the time of the injury, yet his services were of such a beneficial character as respected the defendant, the latter owed him the duty of reasonable care and diligence as to his personal safety which it would owe to one of its own employes engaged in the same kind of service. The plaintiff’s evidence, therefore, tended to support a cause of action. That being so the instruction which was given to the jury, at the instance of defendant, was erroneous, because it ignored and withdrew from the attention of the jury the testimony offered under the plaintiff’s theory of the case, and submitted the case to the jury only upon the defendant’s theory as to facts. Such an instruction, under such circumstances of a case, has been so repeatedly condemned by the Supreme Court, it seems a waste of time to refer to the cases. The judgment should be reversed and cause remanded.
Judgment reversed.