This is an action to recover damages for personal injuries which the plaintiff claims he sustained while in the defendant’s employ. It is unnecessary to review the facts, as we think that the defendant’s exception to the charge of the court presents the only question requiring comment.
The chief point in issue was whether one Walsh was a superintendent, or whether he was a fellow servant of the plaintiff. It was within the province of the jury to determine this issue. The charge of the court, by withdrawing from the consideration of the jury the question as to whether Walsh was a fellow servant, and his refusal to charge that, if the jury found that Walsh was a fellow servant, the plaintiff could not recover, decided the chief point in issue in favor of the plaintiff as a matter of law. This erroneous ruling was necessarily prejudicial to the defendant, and requires that the action should be retried.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.