Smith was front brakeman on a freight - train, going from Knoxville to Bristol, on *115the night of January 22, 1889. He was riding on the engine with the engineer. In going up a grade near Greenville, they came near the first section of a freight-train, they being the second section. The first section was moving very slowly, and seemed about to stop. When within thirty or forty feet of the caboose, Smith says the engineer told him to make the coupling, in order to push the first section over the grade; that such an order had been previously given a mile hack, and he refused. to make such a coupling while the first section was moving.
He says he thought the first section had stopped when he left the engine to make the coupling. He went out over the engine and upon the ground, and went forward and climbed into the caboose of the first section, secured a coupling-pin, placed it in the draw-head of the caboose, and then walked back to the pilot of the engine, got upon it, lifted up the draw-bar, signaled his engineer to come ahead, when the engineer told him, “Sever mind, they are gone.” He then dropped the draw-bar, when his foot slipped, and he fell to the ground, and was run against by the. pilot, thrown from the track, and hurt.
The first section was moving when he went into the caboose and when he left it; and the conductor of the first section told him, while in the caboose, not to hitch on to his train, as he would soon be over the grade. This, Smith says, he did not hear.
*116Eor the injuries received, this suit is brought. He had been in the employment of the company for some time as brakeman. The coupling apparatus was all right. Nothing was the matter with the machinery or with the track; all were in good order.
It was his duty to make couplings, and he had often done it before. He insists the only objection to the engine was that there was only a small “slot” in which a part of the foot could be placed. It was known as a “Jack” engine. It is a modern engine, and experts say the style of the pilot was the best and safest for removing obstructions from the track. These engines are used altogether upon the company’s road.
Hpon the second section there was a conductor in charge of the train. Both trains were moving when he was preparing to make the coupling.
He states that he refused to make the coupling when first ordered by the engineer, because it was dangerous and reckless, and against the rules and orders of the company to make a coupling with a moving train.
Hpon this statement ' of facts the plaintiff below was not entitled to a recovery. If he was ordered by the engineer to make the coupling to the moving train (which the"‘'engineer denies), he was not in duty bound to do so, as he says the rules aud regulations of the company forbid him •to couple to a 'moving train.
Again, the engineer and brakeman • upon the *117same train, the conductor being in charge thereof, were fellow-servants engaged, as in this instance, in the same -common duty, to wit: the coupling of the trains.
The company is not liable for the negligence of either by which the other is injured, there being no proof of the incompetency of either to discharge the duties for which they were employed by the company. , ,
The next assignment of error is upon the charge of the Court. The Court correctly charged the law in regard to fellow-servants, and then said to the jury, “I can well imagine a case, and you can, also, where the engineer might be master.” This was error.
The special Judge then proceeded to imagine one or more cases, though all the proof in this case showed that the conductor was in chai’ge of the train, all of which tended to confuse the jury, and we are unable to tell to what extent they proceeded to exercise their imagination.
Let the judgment be reversed, and the case remanded.