On Petition for a Rehearing.
Mitchell, C. J.It is held in the principal opinion that, the complaint was bad, because it appeared therefrom that the injury to the appellee was the result of negligence in loading the cars, and that an inference arose from the facts stated that they were loaded by his fellow servants.
In the argument on petition for a rehearing, it is vigorously contended that no such inference arises. The insistance is that because it is averred in the complaint “ that said defendant suffered, permitted and directed said bent and crooked iron rails to be placed on and projecting over the end of said car last named,” etc., it may as well be inferred that this was done by the chief agents and officers of the railroad company as by a fellow servant.
The infirmity of counsel’s position is that they would determine whether the persons who loaded the cars were fellow servants or not by the office they held, and not by the work in which they were at the time engaged. One who loads the *356cars of a railroad company is, while so engaged, a fellow servant with the brakeman who goes upon the train in which such loaded cars are afterwards placed, and it makes no difference what official designation of agency may be applied to him. There are certain duties which pertain to the position of master, and whoever performs them is, for the time being, in the master's place. There is also certain work which pertains to the duty of employee or servant, and whoever else beside the master does this is, while so engaged, a fellow servant with any other employee who is in the same general employment. Courts know judicially that loading railroad iron on flat-cars pertains to the service of an employee, and when it is ay erred that one servant was injured in consequence of the negligent manner in which such loading was performed by the defendant, the presumption arises that such injury was the result of the negligence of a fellow servant. This is so because a railroad corporation must of necessity employ servants to load its cars. To say that the servant who loaded the cars was also the chief agent and officer of the railroad company, without more, would in no manner change the situation. Regardless of his agency or office in other respects, if he was also properly engaged in loading cars, he was at that time a fellow servant with all others in like service.
The petition for a rehearing is overruled.
Filed June 26, 1885.