Dissenting Opinion.
BIGGS, J.-The judgment of reversal in this cause is predicated on the assumed or ascertained fact that the “wiper” in moving the engine acted outside of the scope of his employment. Under our fellow servant law as I read and interpret it, this is an immaterial inquiry. To make the defendant liable under the statute, it was only necessary to find that the deceased at the time of the accident was a servant of the defendant and engaged in operating a train, and that the “wiper” was also in the employ of the defendant, and that the doing of the alleged negligent act by him was in the prosecution of his master’s business. 'These facts are indisputable under the record.
Now, let us examine the statute. It reads: “Every railroad corporation owning or operating a railroad in this State shall be liable for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroad by reason of the negligence of any other agent or servant thereof” (Laws 1897, sec. 1, page 96). It will be seen that the statute fixes the status of the injured servant. He must have been at the time he received his injuries engaged in operating the railroad. The status of the offending servant is *611not fixed. All that the statute requires is that he must be a servant of the defendant. To make him a servant he must have been in the employ of the defendant in some capacity, and his alleged negligent act must have been in the prosecution or accomplishment of his master’s business. The undisputed, facts bring the present case precisely within the statute. Unquestionably, the deceased was a servant of the defendant and was killed while engaged in operating one of its trains. The “wiper” was also in the employ of the defendant, and his alleged negligent act was in the prosecution of the defendant’s business. This made him a servant of the defendant as to that particular act, and if he performed it negligently, the defendant is liable under the plain letter of the statute. A narrower construction I do not think permissible, for it would tend to defeat the law which was intended to make railroad companies liable for all injuries received by its servants while operating its trains through the negligence of a fellow servant. As to such persons, the act of a co-employee, although done in the performance of work not imposed, or against the express orders of the master, must be held to be a negligent act, provided, of course, it was not an act entirely independent of the business.
I also dissent from the conclusions reached by my associates on the question of fact upon which their decision is based. However, it would serve no.good purpose for me to enter into an extended discussion of the evidence bearing on the question. Suffice it to say that there was testimony tending to prove that it was necessary to move the engine; that the “wiper” was left in sole charge of it; that in the performance of his customary duties he was permitted to move it about the yard, when necessary, to protect it from burning cinders, or for the purpose of filling the tank with water, or procuring a fresh supply of coal. Having given him (who is assumed to be an incompetent person to run an engine) limited authority *612to move it, tlie defendant must be held liable for its abuse. As said by Mr. Wood, “be (tbe Master) bas set tbe wrong in motion and must abide tbe consequences as against innocent parties.” Wood on Master and Servant (2 Ed.), sec. 309.