The court did not err in refusing to peremptorily instruct a verdict against the appellee. The federal Liability Act abolished the common-law doctrine of fellow servants. Railway Co. v. Skaggs, 240 U.S. 66,36 S. Ct. 249, 60 L. Ed. 528; Railway Co. v. De Atley, 241 U.S. 310,36 S. Ct. 564, 60 L. Ed. 1016. And if the appellee's injuries were the result of negligence on the part of the engineer in starting to pull the car over without waiting for the signal from the appellee to do so, or of negligence of the crew in failing to remove the loose roof, as was their duty in the evidence, or to notify appellee that they had not removed it, then appellee would not be precluded from recovery. This was an issue of fact for the jury.
Error is predicated upon the seventh paragraph of the court's charge, which reads as follows:
"If the jury shall believe from a preponderance of the evidence that the servants of the defendant in the exercise of ordinary care should have known of the loose roof upon the wrecked car that was being placed upon the track, and that in the exercise of ordinary care they failed to remove the same or failed to tie it so that it would not slide off the car, or if the jury shall believe that the servants of the defendant moved said car without orders from plaintiff, and shall further believe that such act or acts was negligence, and that such negligence, if any, was the proximate cause of the injury, then it will be your duty to find for the plaintiff; otherwise you will find for the defendant."
The engineer operating the engine of the derrick had nothing to do with adjusting or tying the cable onto the box car; and if he, not being a fellow servant, had orders or signals from the appellee to operate the engine that wound up the cable, he would not be guilty of negligence towards the appellee, though the loose roof was on the box car. For he would be doing the act that the foreman actually directed him to do. But if the engineer prematurely started the engine, without signal or order from the foreman to do so, the starting of the engine under such circumstances may be a negligent act. This, as seen from the charge, was submitted as a separate ground for liability. And in respect to the other ground for liability the plaintiff testified:
"I should say it was the duty of every man who works on a derrick outfit, if a man sees anything likely to hurt a man, either to remove it or report it to the foreman. This car with the roof on, it could have been seen. None of the workmen gave me any information about the roof being hitched onto this car. * * * It was the duty of the men under the wrecking foreman, when they see anything that way, to report it or remove it."
The witness Yates, a member of the crew, testified:
"If I would see a loose roof hanging on a car I would think it was my duty to notify Mr. Morgan to remove the roof. I should think it was the duty of the men to see those things and know the existence of danger as much as the foreman."
If it were true, as testified by appellee, that it was his general duty as wrecking foreman to order the crew to attach the cable to the box car, but "the duty of the men under the wrecking foreman, when they see anything that way, to report it or remove it," then the failure either to perform the detail of removing the loose roof or else report the fact that they had not removed it to the foreman was an act, or omission, indicating a breach of duty of the servant himself and not a negligent exercise of superintendence by the foreman. To bar the foreman of any recovery the particular act of alleged negligence would have to be the negligence of superintendence on the part of the foreman, and not the particular negligent act of a subordinate. Consequently, in view of the evidence, the court's charge was not error in predicating negligence or not in failure on the part of the members of the particular crew in failing to remove, as their duty required, the loose roof from the car being righted up. The second assignment is overruled.
It was not error, it is thought, to refuse the special charge complained of in the sixth assignment. It authorized a verdict for the plaintiff, notwithstanding the members of the crew tying the cable were negligent in not removing the loose roof from the car. *Page 297
We have considered all the assignments, and conclude that reversible error is not presented.
The judgment, we think, should be affirmed, and it is accordingly so ordered.