In appellant's motion for rehearing it is insisted that the finding of this court in the original opinion that appellee and the brakeman Russell were not fellow servants, and the statements made in the opinion in reference to the facts upon said issue are not supported by the evidence, and we are requested to file additional findings of fact with reference to said issue.
We have carefully re-examined the evidence in the record bearing upon this question, and are satisfied that the statements in the original opinion are supported by the evidence in the record. In order, however, that appellant may have the benefit of the testimony as it is shown in the record, we find that upon this issue the witnesses testified as follows. Appellee testified:
"My duties in my employment at Rogers were to check baggage, unload baggage, etc., and unload freight from the cars and assist around in nearly everything Mr. Novey, the agent, told me to do. Mr. Novey is the station agent at Rogers, and I worked under his direction and control, and he had general direction and control of nearly everything I did there. I was the only assistance there besides himself." He further testified: "It was the duty of the brakeman when a car was to be unloaded to bring freight up to the car door; that is, he takes it from its position in the car to the door, and it is my duty to take it the rest of the way or to the freight house. We were both engaged in unloading freight. It is one continuous act from the time he gets hold of it until I set it over on the depot platform. It takes all that to be done before the freight is unloaded. The brakeman was performing his regular duties in setting the freight up to the car door. He was employed to do that. There was nothing new or strange about *Page 64 it. I was employed, too, and it was a part of my regular duties to take the freight from the car door over the depot platform. * * * After the brakeman would bring a piece of freight up to the car door, and call out what it was for, he would have nothing more to do with it. He did not help me to carry the freight from the car door to the freight house. That was my work. That is, my work began where his ceased."
J. Novey, the station agent, testified: "Elmore and I were good friends, and he was working under me there as porter."
The brakeman, Russell, testified as follows: "It was Mr. Novey's business to stand there and check the freight, and that is what he was doing at the time, as usual. He would check the freight out as I brought it to the door, and as Elmore carried it in. My position was that of brakeman at that time. Mr. Novey was station agent and Elmore was porter there at the depot. I suppose I might be considered as working in one department and him in the other. I was working under the conductor of the train, and I suppose Mr. Elmore was working under Mr. Novey at the station. The car that we were unloading out of was standing on the main line. We left one car there and unloaded some freight out of it before we left."
Redirect examination: "Mr. Novey could direct me what to do while we were unloading that freight and how to do that, but when we are out on a run I am under the conductor. The conductor of the train did not have anything to do with the unloading of that freight. He was not there at that time. We got to Rogers that morning about 10 o'clock and left about 11 o'clock, as well as I can remember. While we were unloading this freight, both myself and Mr. Elmore were temporarily working under Mr. Novey's direction."
The motion for rehearing is overruled.
Motion overruled. *Page 65