delivered the opinion of the court.
The appellant in this suit, plaintiff in the trial court, filed his declaration in the circuit court of Tishomingo county against the appellee, charging that the defendant *432railroad company, while engaged in interstate commerce, injured him, and sought damages in the sum of fifteen thousand dollars. The declaration sets out that, while the defendant company was engaged in both inter and intrastate commerce, the plaintiff was employed by it as a section hand, and it was his duty to assist in the upkeep and repair of defendant company’s tracks. In his employment it was necessary for him to assist in running a certain hand car used in and about his aforesaid employment to transport hands, tools, and materials for the work in which he was engaged, and from time to time to help remove the said hand car from the track of defendant company so as not to obstruct same. And that on or about the 24th day of May, 1912, plaintiff and other servants of the defendant company, while engaged about their usual duties,- and as a part of said duties, and with the help of the section foreman, one W. A. Robinson, were removing said hand car from said track of defendant, to the west side thereof, and that while he was on the west side of the hand car and the ground on which plaintiff was working was slanting west, the said foreman “suddenly and without notice or warning to the plaintiff, willfully, wantonly, and recklessly,” etc., negligently threw the weight of said hand car against plaintiff, badly injuring him. To this declaration the defendant filed the plea of the general issue. And in support of his declaration, the plaintiff introduced evidence that, if believed by the jury, would establish the facts therein set out. At the close of the testimony, the defendant moved the court to grant it a peremptory instruction, and the motion was sustained. From this, action of the court the' defendant appeals to this court.
The railroad company defended this action upon the ground that, under the plaintiff’s own theory of the ease, he had assumed the risk complained of, and was therefore not entitled to recovery. But under the plaintiff’s version of this case, his injury was caused, not *433through any risk assumed by him, but through the negligence of one of his fellow servants; and although it may be true that the doctrine of fellow servant and. the doctrine of assumption of risk originally grew out of the same principle — that of an implied contract on the part of the employee to assume the risks incident to the negligence of his fellow servant or to assume the risks incident to his employment and known to him — nevertheless at this time' each of these doctrines are well established in the jurisprudence of this country, and each is as distinct from the other now as if their origin were entirely different. In the ■ case of Seaboard Air Line Ry. Co. v. Horton, 233 U. S. 501, 34 Sup. Ct. 635, 58 L. Ed. 1069, L. R. A. 1915C, l, Ann. Cas. 1915B, 475, relied on by appellee, this distinction is recognized in the following paragraph quoted therefrom:
“This clause has two branches; the one covering the negligence of any of the officers, agents, or employees of the carrier, which has the effect of abolishing in this class of cases the common-law rule that exempted the employer from responsibility for the negligence of a fellow employee of the plaintiff, and the other relating to defects and insufficiencies in the cars, engiiies, appli- • anees,” etc.
In so many words the statute has declared that a railroad company is liable—
“for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” 35 IT. S. Statutes at Large, • par. 2, p. 65 (U. S. Comp. St. 1913, section 8658).
The decision relied upon states affirmatively that this clause has the ¿ffect of abolishing in this class of cases the common-law rule that exempts the employer from responsibility for the negligence of a fellow servant of the plaintiff.
It is not controverted that the plaintiff was employed by a common carrier by railway, then engaged in interstate commerce, and, according to the evidence adduced *434by bim, while so engaged he was injured by the negligence of a fellow servant. The court erred in granting the defendant the peremptory instruction requested.
This cause is therefore reversed and remanded.
Reversed and remanded.