jury. This is true in that class of cases where the existence of such facts come in question, rather than where deduction or inferences are to be made from the facts. In some cases, too, the necessary inference from the proof is so certain that it may be ruled upon as a question of law. If a sane man voluntarily throws himself in contact with a passing engine, there being nothing to counteract the effect of this action, it may be ruled, as a matter of law, that the injury to him resulted from his own fault, and that no action can be sustained by him or his representatives. So, if a coachman intentionally drives within a few inches of a precipice, and an accident happens, negligence may be ruled as a question of law. On the other hand, if he had placed a suitable distance between his coach and the precipice, but by the breaking of a rein or axle, which could not have been anticipated, an injury occurred, it might be ruled, as a question of law, that there was no negligence and no liability. But these are extreme cases. The range between them is almost infinite in variety and extent. Upon the facts proven in such cases it is a matter of judgment and discretion-of sound inference-what is the deduction to be drawn from the undisputed facts. Certain facts we may suppose to be clearly established, from which one sensible, impartial man would infer that proper care had been used, and that there was no negligence. It is this class of cases, and those akin to it, that the law commits to the decision of the jury. Twelve men, of the average of the community, comprising men of education, and men of little education, and men of learning, and men whose learning consists only in what they have themselves seen and heard, -the merchant, the mechanic, the farmer, the laborer,-these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment, thus given, it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man; that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge." 2 Redf. R. R. 231; Patterson v. Wallace, 1 McQueen, 748; Mangam v. Brooklyn R. Co., 38 N. Y. 455; 98 Am. Dec. 66; De

troit & M. R. Co. v. Van Steinburg, 17 Mich. 99. See other cases cited therein cited; also Fernandez v. Railway Co., 52 Cal. 45; Houston & G. N. R. Co. v. Randall, 50 Tex. 261.

We hold that this case should have gone to the jury and that the motion for non-suit was properly denied.

Then, it not appearing from the evidence adduced by the plaintiff that this case should have been determined by the court on presentation of plaintiff's case, it was incumbent on defendant to prove a want of care. In Railroad Co. v. Gladmon, 15 Wall. 401, it is said: "If there are circumstances which convict him [plaintiff] of concurring negligence, the defendant must prove them, and thus defeat the action." In that case a quotation is made from Oldfield v. New York & H. R. R. Co., 14 N. Y. 310, wherein DENIO, J., says: "I am of an opinion that it is not a rule of law of universal application that the plaintiff must prove affirmatively that his conduct on the occasion of the injury was cautious and prudent. The culpability of the defendant must be proved affirmatively before the case can go to the jury; but the absence of any fault on the part of the plaintiff may be inferred from circumstances, and the disposition of men to take care of themselves, and keep out of difficulty, may properly be taken into consideration."

The jury in this case had fairly presented to them the fact as to whether the boarding of the car by plaintiff was done at the proper time, viz.: when the whistle blew for the men to get on, and whether the plaintiff used proper care and caution in getting on the tank car, and sitting where he did. Were the jury to presume upon the carelessness of the engineer, and was the plaintiff to so presume? Did not the jury determine that with ordinary caution in the engineer the plaintiff was in a position safe from harm? They had before them the proof that the water-tanks moved forward by the collision, and the water car was knocked off the track. They must have been satisfied that the conduct of the engineer was reckless, and that he acted regardless of the consequences. Had the engine-driver moved his engine with due care, plaintiff was safe, whether his legs hung over the end of the car or not, and he cannot be charged with negligence in presum

ing that the engine-driver would use due care. They had before them the testimony that Hobson was a stranger to the engineer, and knew nothing about him. They had before them the contested point of the position of the legs of plaintiff, and the jury had this instruction given them; "If you find that an order was made by defendant in regard to the time and place of getting on the train to return to the end of the track, and the plaintiff violated the order by getting on the car before the train was made up, or before the signal was given to get upon the train, and that such violation contributed proximately to this injury received by plaintiff, he cannot recover;" and the trial judge had before him all the witnesses, could judge of their manner of giving evidence, etc., and he refused a new trial.

The next matter that presents itself for consideration is, did the plaintiff and the engineer occupy such relations towards each other that the act of the one exempted the common employer (the railroad company) from liability? The plaintiff's business was only to drive the teams from one end of the line for the distribution of ties still further on. Mr. J. C. Fitch was his immediate superintendent or foreman. Mr. Montandon was Fitch's immediate superior, and engineer of the track-laying department. The plaintiff had nothing whatever to do with the locomotive engineers, save to be taken to and from his dinner as ordered by Mr. Fitch. His work was not directly connected with this engineer. Had a fellow-teamster injured the plaintiff, then he could not recover from the employer, on the only just and true basis laid down in all the decisions, and more particularly the Moranda Case, 93 Ill. 302, 34 Am. Rep. 168, wherein this cogent language and argument is used: "Where servants of the same master are directly co-operating with each other in a particular business, at the time of the injury, or are, by their usual duties, brought into habitual consociation, it may well be supposed that they have the power of influencing each other to the exercise of constant caution in the master' work (by their example, advice, and encouragement, and by reporting delinquencies to the master) in as great and in most cases in a greater degree than the master. If, then, each such

cases therein cited; also Fernandez v. Railway Co., 52 servant knows that neither he nor his fellow-servant, if injured by the other's negligence, can have redress against the master, he has such incentive to constant care that the wellbeing of society in such cases does not demand that the master be made to answer. The same considerations of policy which, to avoid injury to third persons, usually demand that the master be held responsible, seem plainly not to demand it in the case of such co-servants. But though servants are men employed by the same master, still, unless either their duties. are such as that they usually bring about personal associations between such servants, or unless they are actually cooperating at the time of the injury in hand, or in the same line of employment, they have no power to incite each other to caution by counsel, exhortation, or example, or by reporting delinquencies to the master, and the well-being of society in such case must depend upon the devotion of the servant to the interests of the master, and the zeal of the master to promote a constant exercise of due care by his servants.' And, further, says the opinion "Where servants of a common master are not consociated in the discharge of their duties; where their employment does not require co-operation, and does not bring them together, or in such relations that they can exercise an influence upon each other for the promotion of proper caution,-in such case the reason of the rule holding the master responsible for damages resulting from the negligence of one of his servants seems reasonably to apply with as great force as if a stranger were the party injured."

And even, in application to the case at bar, can be invoked the reasoning of Chief Justice SHAW in the celebrated case of Farwell v. Boston & W. R. Corp., 4 Metc. 49, 38 Am. Dec. 339, wherein he says: "Where several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each depends to a great extent on the care and skill with which each other shall perform his appropriate duty, each is the observer of the conduct of the other, can give notice of any misconduct, incapacity, or neglect of duty, and leave the service if the common employer will not take such

precautions, and employ such agents, as the safety of the whole party may require. By these means the safety of each will be much more effectually secured than could be done by a resort to the common employer for indemnity in the case of loss by the negligence of each other." Farwell v. Boston & W. R. Corp., arose from injuries received by an engineer through the carelessness of another servant of the company, in the management of the switch, and the court, in announcing this doctrine of the exemption of the employer from liability, says that it is a nice question, and adds a "caution against any hasty conclusion as to the application of this rule to a case not fully within the same principle."

The supreme court of the United States in Randall v. Baltimore & O. R. Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322, say that hitherto this court had not occasion to decide who were fellow-servants, and that for the purpose of that case it was not necessary to "undertake to lay down a precise and exhaustive definition of the general rule, or to weigh the conflicting views which have prevailed in the courts of the several states. There a switchman was injured by a train where there was "a net-work of tracks." There was no evidence that the tracks were improperly constructed, or that the engine-driver was unfit for his duty. The court there say that the general rule of law is established that one who enters in the service of another takes upon himself the ordinary risks of the negligence of his fellow-servant in the course of his employment. There the plaintiff was in attendance on his switches, and must have known all the dangers attendant thereupon, and could look out for the consequences. In the case at bar no such conditions arise. The engineer was taking plaintiff to his work, which was separate and distinct from that of the engineer. If the work of plaintiff was performed on or about the train, then, by the rules as laid down in the prevailing line of authorities, he would have been a fellowservant with the engineer. We do not think the case at bar comes within this case; nor the case of Hough v. Railway Co., 100 U. S. 213; nor in Armour v. Hahn, 111 U. S. 313; 4 Sup. Ct. Rep. 433; nor Abend v. Terre Haute R. Co., 111 Ill. 202, 53 Am. Rep. 616. It does come within Seaver v. Boston &