Thomas Parrish, Appellant, vs. Pensacola and Atlantic Railroad Company, Appellee, 28 Fla. 251

Tayuok, J.: Thomas Parrish, the appellant, brought suit against the Pensacola & Atlantic Railroad Company to recover damages for an injxiry sustained by him resulting from the negligence and incompetency of the person in charge of - one of the defendant’s locomotives.

The declaration alleges that said company employed one Chappel as engineer, and one Eubanks as a fireman to aid and assist 'Chappell in running and operating a steam locomotive on said railroad; that said Eubanks was inexperienced, incompetent and unfit tó act in the capacity of fireman or engineer, or to aid and assist in the control or management of a locomotive; that plaintiff was an employee of the defendant company; that while standing on a car of the gravel train which was stationary on the track, throwing dirt therefrom m compliance with his orders, that said Eubanks, a fireman, and acting as engineer, negligently and unskillfully, and without giving any warning to the plaintiff, backed the defendant’s steam locomotive against the gravel train with such force and violence that plaintiff was thrown from the car on which he was standing, engaged in throwing dirt, down and upon the track, and his left arm caught between the car -wheel and the railroad track and was greatly injured and mangled; that the incompetency of said Eubanks -was known to the defendant company before and during the time of his employment and at the time of the injury to plaintiff, or might have been by the use of ordinary diligence.

The defendandant idead “not guilty,” and that the injury to plaintiff was occasioned by his contributory negligence. The plaintiff joined issue on the pleas. The plaintiff introduced James Campbell, who testified as follows: “I know the plaintiff; was present in charge of tliegravel train of the defendant at the time he was wounded, which I think was about the 16th of June, 1883, in this county, between Oottonclaíe and Davis’ Mill.

I did not see him when he fell and received his wounds, as I was signaling the fireman in charge of the gravel train, to stop the engine, as it was coming back too fast, but saw him a few minutes afterwards, after, he had been taken'up, and saw that he was hurt on the arm, but did not examine tlie extent of tlie injury; lie was sent back to Marianna to a doctor, wlio took off his arm. The plaintiff ivas shoveling dirt off of one of the fiat cars at the time the engine struck tlie train.

The bump of the engine ivas severe enough to drive the whole train, six or eight flat cars loaded with dirt, about twenty-five or thirty feet. I saw that the fireman ivas coming back with too much force to make a coupling, and I called out to him to reverse the engine, which he did, but too late to prevent the bump. The engine then started forward, and I ran and jumped aboard of her.

When I saw the engine coming back with such force I hallooed to Daffin, the brakeman, who was to make the coupling, to get out from between the cars, that the engine was coming back with too much force, and lie jumped out before she struck; don’t know why the fireman let the engine come back with such force; suppose she got away with him. The fireman had been sent me by the defendant about six weeks before; don’t know whether he ever fired on or had charge of a locomotive engine before. The fireman’s name ivas Eubanks, and he is now dead.

A fireman can learn to handle an engine so as to switch off and couple up cars in a day or two if apt at learning, but would require six weeks to six months as fireman before they would be competent to take charge of an engine to run it; didn’t leave Eubanks in charge of the engine very often, because he had not been with me long, and I didn’t know that it would be safe; but ivas compelled to do so on this occasion, as the defendant had not furnished me with a conductor, and, I had to perform the duties of engineer and conductor both, which required me sometime at the rear end of the train, while the iireman -would have to be left in charge of the engine.

That was the case when the plaintiff received his injury. I was on the ground for the purpose of giving signals to the fireman to take a car from the side track and hitch it on the gravel train, when the gravel hands were at work. It is a usual thing' for engineers to leave their trains in charge of the iireman when there is no conductor on the train and there is coupling to do. I had entire charge of the train at the time, and also of the train hands, who consisted of Eubanks as fireman, and Ruffin as brakeman. I had no charge or control over the plaintiff or any of the gravel hands or their boss, Capt. Johns.

They "were under the charge of Capt. Johns, and neither Capt. Johns nor any of the hands under him had anything to do with the controlling of the train.

T was at the time, am now, and have been ever since, in the employ of the defendant.” On cross-examination the witness testified: “I have known good engineers to come back with as much force, when making a coupling, when their engines would be out of order, .and sometimes when they were not out of order, have known couplings to be made when the engines came back that hard, but it is not usual; can’t say that it was always caused by negligence; it came back harder than if I had had charge of the engine. I had let Eubanks have charge of the engine occasionally before but for a short time.

The engine was in good order at the time; nothing the matter with her.” E. Baffin, also introduced by the plaintiff, testified as follows : ‘ ‘Was brakeman on the gravel train of defendant at the time the plaintiff lost his arm, and had been for two or three months. The train hands consisted of Chappell, who had charge of the engine and train, Eubanks as fireman, and myself as brakeman. The plaintiff had been working with the gravel hands for a week or two before he got, his arm broke. At the time he got his arm mashed he was standing on a flat car towards the rear of the train throwing off dirt.

The engine had been uncoupled from the train and was bringing in a car from the side track to attach to the train, and I was standing ready to make the coupling.

When the engine started back with such force Chappell hallooed to me to get out, an'd I did so without making the coupling; when the engine struck it knocked the train back thirty or forty feet, and plaintiff fell under the cars and got his arm broke-just below the shoulder. lie could not speak at first, but afterwards complained and groaned as if he was', suffering very much, lie -was brought back to Marianna and the doctors took off his arm just below the-shoulder. Eubanks very seldom had charge of the engine. When the car bumped, the engine started forward and Chappel ran and jumped on it and stopped it.

The bump was a much harder one than when Chappell handled the engine himself.” Henry Nelson, a witness for plaintiff, testified as follows: I was one of the gravel hands on the gravel train of defendant at the time plaintiff got his arm broke. The plaintiff was also in the employ of defendant at the time as a gravel hand on the train. We were getting one dollar a day each. There was a number of gravel hands on the train at the time and all were getting one dollar a day. We had just got to the place with a train load of dirt, and we all, including the plaintiff, were throwing dirt off the train.

The engine was detached from the train that we were unloading, and went over on a side track and got another car, and was in the act of coupling onto the train, but came back with such force that it knocked many, if not all, of us down, and the plaintiff fell backwards, striking his head against the end of the car in front of the one he was standing on, and fell with his arm resting on the track, and car wheels ran over it and mashed it. When we got to the plaintiff he was lying . where he fell, and could not speak for awhile.

His head was hurt and scarred also; he seemed to suffer a great deal, and was brought to town where the doctor took off his arm. Mr. Eubanks was in charge of the engine at the time, and Mr. Chappell was on the ground. Eubanks had not been fireman on that train long; very seldom • saw the fireman in charge of the engine, if ever before. Mr. Chappell had nothing to do with the gravel hands; Mr. Johns was in charge of them. We, including plaintiff, were day laborers on the road. When the engine came back it was much harder than usual.

The flat which the plaintiff was on was near the rear end of the-train of eight or ten cars; don’t remember the exact number. The plaintiff was bending down throwing off dirt when he was knocked off. Plaintiff had been working on the road about two weeks.” The plaintiff, Thomas Parrish, testified as follows: “lam now- about thirty-five years old; was working-in the defendant’s employ as a day laborer at one dollar a day in June, 1883, when I lost my arm; had been at work about two weeks; Capt.

Johns was my boss at the time; he was in charge of all the gravel hands, and I was one of the number; it was sometime in June, 1883, that we were unloading- a gravel train that was loaded with dirt; I was standing near the front end of one of the rear flats shoveling off dirt when the engine came back against the train and knocked me down backwards, my head striking against the end of the flat immediately in front of the one I was on, stunning- me, and my left arm falling in such a position on the track that the wheel ran over it’ and mashed it just below the shoulder; they brought me back to Marianna, and Dr.

West cut off my arm; I suffered a great deal from the loss of my arm and lick on my head, and suffer from it now; my health was very good previous to the injury, seldom ever sick; now sometimes I am scarcely able to get about; I get so weak and my head swims; I cannot earn as much as twenty-five cents a day regularly now.

For a year and a half before I began to work for defendant, I was getting thirty dollars a month as fireman at a saw mill, and on a steam boat, and was getting a dollar a day at the time I was hurt; had farmed in Leon county, Florida, with my brother previous to that, malting three or lour bags of cotton clear every year. Mr. Eubanks, the fireman, had charge of the engine when I was hurt; he left the engine, which was detached from the train, come back so hard that it knocked many, if not all, that -were on the train down. Mr.

Chappell, the engineer, was on the ground some distance from the engine when he signalled the fireman to back up to couple. Was sick five or six months before I was able to do any work. I had only been in the defendant’s employ about two weeks. 'The defendant offered me fifty dollars and transportation to Tallahassee if I would receipt them in full for the loss of my arm, which I refused to do, and, they left me to shift for myself about a month after T lost my arm.” The defendant introduced Dr.

West, who testified as follows: “I am a practicing physician, and was called to see the plaintiff when he was wounded in June, 1883. His head -wound was not serious. The arm wound was very painful and necessitated amputation, and I took off his arm just below the shoulder; such -wounds shock the nerves, impair vitality and affect locomotion. The foregoing comprises the entire testimony in the case.

The court charged the jury as follows: “That a fellow servant is one engaged -with another under a common master, and in the same common employment, so that they are brought in contact with each other, notwithstanding they are subject to the orders and under the exclusive control of separate bosses or foreman and in different work in the same service; for illustration; if one were engaged as a common laborer to work on the road bed or gravel train he could not be a fellow servant with the engineer or conductor of a passenger train, but would be a fellow servant with all employed oh the roadbed or gravel train, if his employment was in a common work and brought him in immediate contact with' them and risk through them, although working under the orders of a different boss or foreman in the said common work arid in different sorts of work.

If, therefore, you believe from the evidence that the employment of the plaintiff brought him in contact with Eubanks and Chappell, or either of them, as being engaged in a common work, then he is a fellow servant with them, and cannot recover of the defendant for injuries received by the negligence of the said Eubanks and Chappell, or either of them, in the management and control of the gravel train.” The judge then gave the following special charges requested by the defendant’s counsel: “If the plaintiff does not prove that the defendant was negligent in the employment of Eubanks as fireman, any proof that he was careless or negligent does not entitle the plaintiff to recover unless he also proves that the defendant was aware of such negligence or unskillfulness in time to remove him before the accident in question occurred.

But one single act of negligence or exhibition of incompetency would not make it the duty of the defendant to remove him unless such act or exhibition was of such a character to make it imprudent for a reasonable man to retain him. In order that the jfiaintiff may recover because the defendant failed to remove a fellow servant after knowledge of his unfitness, it must be shown by the plaintiff that some one whose duty it was, or who had the authority, to remove the unfit employe had a knowledge of his unfitness and failed to remove him. Knowledge of a fellow ■servant would not be knowledge of the defendant.

But even if the defendant had such knowledge by its proper officers, yet the plaintiff cannot recover unless he was without such knowledge himself. If he knew of the unskillfulness or carelessness or unfitness of the fireman and yet continued to ivork in such a position that his safety was jeopardized by a recurrence of said carelessness or unskillfulness, then he cannot recover.

But it is not necessary to debar him from recovering that he should actually have known of such unfitness, for if he had the same means of knowing that the defendant had, he cannot recover for injury resulting from such unfitness; nor can he recover if his conduct immediately preceding the accident was such that a reasonable and prudent man would not have adopted it and such conduct contributed to the occurrence.of the' injury.

If the jury find that the inj ury was occasioned by the assumption by the fireman of a position for which he had not been employed by defendant and was unfit, then, in order to recover, the plaintiff must show that the defendant knew of such assumption and unfitness pii or to the injury, and aquiesced in such assumption, or did not take adequate steps to prevent its continuance! or recurrence, and such knowledge or aequiesence, or inaction on the part of tlie engineer of the same train, is not sufficient to show that the defendant had knowledge, or acquiesced, or wrongfully failed tone* ” In the course of {lietrial plaintiff offered to prove by the witness Chappell that Eubanks had told witness when lie came to fire for him that lie had “never fired on a locomotive, or run on one before,” to which defendant’s, counsel objected; the court sustained the objection, and plaintiff’s counsel excepted.

Plaintiff offered to prove by one Baffin that, as the plaintiff fell, Capt. Johns raid to Chappell: “I told you to stop putting your engine in charge of that firemen, now you have killed a man,” to which defendant objected; the com* sustained the objection, and plaintiff excepted. The jury found a verdict for the defendant. Tlie plaintiff moved tlie court for a new trial on tlie following grounds : 1st. The verdict of the jury was contrary to the evidence, the law and the charge of the court; 2nd. The verdict of the jury was against the' weight of tlie evidence; 3rd.

The charge of the court was contrary to law; 4th. The charge of the court was calculated to mislead tlie jury in reference to a knowledge of the incompetency of the fireman, Eubanks, on tile part of the defendant; 5th. Because the evidence shows that the defendant was guilty of contributory negligence in not furnishing a sufficient number of men to run the train, which developed upon the trial, but on account of it not being alleged in the declaration could not recover upon said ground; 6th.

Because plaintiff did not know the whereabouts of one Johns, who was in charge of plaintiff as boss at the time of the injury complained of, by whom he believes he will be able to prove that the defendant had notice of. the incompeteney of said Eubanks, and he has now ascertained where said Johns is and believes that ho can procure his attendance or his testimony at the next term of the court, as shown by affidavit on file. Additional grounds; 7th.

That the judge, charged the jury as follows: “That a fellow servant is one engaged with another under a common master, and in the sanie common employment, so that they are brought in contact with each other, notwithstanding they are subject to the orders, and under the exclusive control, of soparte bosses or foremen, and in different work in the same service; for illustration if one were engaged as a common laborer to work on the road bed or gravel train he could not be a fellow servant with the engineer or conductor of a passenger train, but would be a fellow servant with all employed on the road bed or gravel train, if his employment was in a common work and brought him in immediate contact with them and risk throng]! them, although working under the orders of a different boss or foreman in the said common work and in different sorts of work.

If, therefore, you believe from the evidence that the employment of the plaintiff brought him in contact with Eubanks and Chappell, or either of them, as being engaged in a common work, then he is a fellow servant with them, and cannot recover of the defendant for inj uries received by the negligence of the said Eubanks and Chappell, or either of them, in the management and control of the gravel .train,’’ which said charge is believed to be erroneous; Sth.

That the judge further charged the jury as follow : “ That though the evidence discloses the fact that the defendant was. negligent in not having sufficient, employes to manage and control the gravel train, and such negligence caused the injuries of which plaintiff complains, yet you cannot find for the plaintiff on this account because there is no claim for such negligence in plaintiff's declaration,” which said charge is also believed to be- erroneous; 9th.

That the said judge further charged the jury as follows : “That the' onus is on the plaintiff to prove that the defendant was guilty of negligence in the employment of Eubanks as fireman on the gravel train, as the law presumes that it did its duty,” which said charge is also believed to be erroneous. The court denied the motion. The appellant assigns errors as follows: 1st. The court erred in refusing to permit plaintiff to prove by witness Chappell that Eubanks, who was dead, had told liim that he had never fired on a locomotive engine before; 2nd.

The court erred in refusing to permit plaintiff to prove by Henry Nelson that Captain Johns said, “ Chappell, I told you to stop putting your en gine in charge of that fireman; now you have killed a man; ” 3rd. The court erred in giving the charges set forth in the motion for a new trial; 4th. The court erred in giving each of the special charges asked by the defendant’s counsel; 5th. The court erred in refusing to grant the motion for a new trial.

Counsel for the appellee insists that tin1, first two errors assigned cannot be enquired into by this c-oiut, for the reason that they were not included and made a part of the motion for a new trial. This court in the case of Dupuis vs. Thompson, 16 Fla., 69, has settled this point; the court said: “Tn some of the State courts, and in some of the courts of the United States, it has been held that a motion for new trial is a waiver of the exceptions taken to the rulings during the progress of the trial.

Before the act of 1853 (Chap. 521, Laws, sec. 4, p. 840, McClellan’s Digest,) the decision of the Circuit Court upon a motion for a new trial was held by this court to be a matter of discretion not subject to review. Carter vs. Bennett, 4 Fla., 283.

This statute having given this right, it has been the constant practice of this court to review such decisions, and in connection with them exceptions to matters occurring during the progress of the trial.” Counsel for appellee also insists that the “three ad ditional grounds ” of the motion for a new trial cannot be reviewed by this court because these grounds were filed after the expiration of the four days allowed by the statute for filing reasons and to make a motion for a new trial.

The record is silent as to -the time when these additional reasons or grounds for a new trial -were filed, and in fact as to when any of them were filed. The records shows, however, that the court entertained the motion, and after consideration, denied it. We think we can reasonably infer from this action of the court, and the failure of the record to show any objection to the court’s entertaining the motion that they were filed within the time prescribed by law.

It is objected further by the counsel for appellee that the second and third “ additional grounds ” (numbered 8th and 9th in the motion for new trial) cannot be considered for the further reason ‘ ‘ that the charges incorporated in the motion for new trial do not contain the rulings of the court set forth in said additional grounds. ’ ’ Where the giving or refusal of a charge is relied upon as error, the fact that such charge was given or refused must be made to appear affirmatively, either by being transcribed into that part of the bill of exceptions that is usually devoted to the exposition of the charges given or refused; or by being copied into the record sent here and evidenced by the endorsement of the judge thereon over his signature as being “given” or “refused,” in compliance with

Chapter 2096, Laws of 1877; otherwise the giving or refusal of such charges cannot be assigned as error here, or considered by this court. The embodiment of a motion for a new trial into a bill of exceptions is not evidence of the truthfulness of any statement of fact set forth in such motion, but is evidence only that such a motion in the form presented was in fact made before the court.

And when such motion sets out and contains as a ground a charge purporting to have been given or refused by the court, the giving or refusal of which is evidenced nowhere else in the record and in no other manner except by the transcription thereof into such motion, this court can not consider such charge for the want of proper evidence that it was in fact given or refused.

Section 2 of

Chapter 3431, Laws of 1883, does not change this rule, but simply enlarges the time within which exceptions may be taken to charges actually given. The meaning of said act is, that when a charge actually given is embraced in a motion for new trial it shall be taken as an exception to such charge, whether any exception was taken thereto at the time it was given or not; but it does not undertake to constitute such a motion as evidence of the truthfulness of anything contained therein.

There is no evidence in this record that the charges numbered 8th and 9th in the additional grounds to the motion for new trial were ever in fact given to the jury, and cannot, therefore, be considered. Carter vs. State, 20 Fla., 754; Boswell vs. State, Ibid, 869; Broward vs. State 9 Fla., 422.

The propositions of law announced in the instruction given to tlie jury in this case and assigned as error here presents the question: Whether the master is liable to one employee, who has sustained personal injury, 'in and about the work for which he was employed, through the negligence or earlessness of another employee, or fellow-workman, of the same master, and engaged in the same common undertaking.

The answer to this, as an abstract proposition, cannot now be said to be an open question; but it is well settled by a long line of decisions both in England and in nearly all the American States, that the master is not liable or responsible to one servant for personal injuries received in the course of his employment through the negligence of a fellow-servant "when engaged in a common work. In Priestly vs.

Fowler, 3 Messon & Welsby, 1, decided in 1837, where the servant sought to recover damages of his master (a butcher) for personal injuries received through the breaking down of an overloaded van driven by a co-servant; which seems to be the first case in England where such liability was attempted to be established, Lord Abinger says : “The mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself.

He is, no doubt, bound to provide for the safety of his servants in the course of his employment, to the best of his jndgment, inform atian and belief. The servant is not bound to risk his safety in the service of his master, and may, if lie thinks fit, decline any service in which he reasonably apprehends injury to himself; and in most of the cases in which danger may be incurred, if not in all, he is just- as likely to be acquainted with the probabilities and extent of it as the master.” In Farwell vs. B & W. R. R.

Co., 4 Met., 49, decided in 1842, which seems to be the first case of this kind in Massachusetts, where a locomotive engineer sought to recover damages for the loss of his hand in the derailment of his engine, caused by the carelessness of a switch tender, also in the employ of the company, in leaving a switch open.

Chief-Justice Shaw delivering the opinion of the court says: “Where several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, 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 this 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 case of loss by the negligence of each other. Regarding it in this light, it is the ordinary case of one sustaining an injury in the course of his own employment, in which he must bear the loss himself, or seek his remedy, if he have any, against the actual wrong-doer.” The same doctrine lias been adhered to in that state in repeated decisions. In Wright vs. N. Y. Cen. R. R. Co., 25 N.

Y., 562, decided in 1862, where the plaintiff, a brakenian, was injured in a collision of two trains alleged to ha,vo been been brought about by the negligence of the defendant in employing an incompetent engineer, the court says: “A master is not responsible to those in his employ for injuries resulting from the negligence, carelessness or misconduct of a fellow servant engaged in the same general business.'’ The same court (Ibid) says: “Neither is it necessary, in order to bring a case within the general rule of exemption, that the servants, the one that suffers and the one that canses the injury, should be at the time engaged in the same operation or particular work.

It is enough that they are in the employment of the same master, engaged in the same common enterprise, both employed to perform duties and services tending to accomplish the same general purposes as in maintaining and operating a railroad, operating a factory, working a mine, or erecting a building.” In Murray vs. South Carolina R. R. Co., 1 McMullan (So.

Ca.), 385, said to be the first case announcing the rule either in England or America, in which the plaintiff, a fireman on an engine, lost his leg in the derailment of the engine on coming in collision with a horse on the track, alleged to have been occasioned by the negligence of the engineer in not stopping the engine, the court say: “ The verdict establishes the fact that the plaintiff’s injury was the effect of the negligence of the engineer, and then the ques-lion arises whether the railroad company is liable to one servant for an injury arising- from the negligence of another servant.

The business of the company is the transportation of goods and passengers. Its liability in these respects is, in general, well defined and understood by tlie profession; and if the plaintiffs case came within any of the principles applicable to these cases, we should have no difficulty in deciding it. The application of steam power to transportation on railroads is of recent origin, but the principle by which the liability of a earner is fixed and ascertained, is as old as the law itself There is nothing in the fact, that the defendant is a corporation, except that of necessity it must act altogether by agents.

The liability is precisely the same as if the defendant was an individual acting by the agency of others. The principle is the same, whether you apply it to a railroad, a steamboat, a wagon, a stage coach, or a ship. If this plaintiff is entitled to recover, I can see no reason why the owner of any of the above inodes of conveyance should not be liable under the same circumstances. If the owner of a wagon should employ two men, one to drive and the other to load, and either of them should so negligently perform his work as to injure the other, the owner of the wagon would be liable.

The principle will extend to all the vocations of life wherein more than one person is employed to effect a single object; and a new class of liabilities would arise, which I do not think has ever heretofore been supposed to exist.” The same court (Ibid)'says: “With the plaintiff the defendants contracted to pay hire for his services. Is it incident to this contract that the company should guarantee him against the negligence of his co-servants? It is admitted he takes upon himself the ordinary risks of his vocation; why not the extraordinary ones?

Neither are within his contract, and I can see no reason for adding this to the already known and acknowledged liability of a carrier, without a single case or precedent to sustain it. The engineer no more represents the company than the plaintiff. Each in his several department represents his principal. The regular movement of the train of cars to its destination, is the result of the ordinary performance, by each, of his several duties. If the fireman neglects his part, the engine stands still for want of steam; if the engineer neglects his, everything runs to riot and disaster.

It is, on the part of the several agents, a joint undertaking, where each one stipulates for the performance of his several part. They are not liable to the company for the conduct of each other, nor is the company liable to one for the misconduct of another,” The same general rule has ever since been adhered to in the South Carolina courts. This generally established rule has been recognized by the Supreme Court of the United States in Hough vs. Railway Co., 100 U. S., 213, and in Randall vs. B. & O. R. R. Co., 109 U. S., 478, and in Chicago, M. & St. P. Ry. Co. vs. Ross, 112 U.

S., 377; also by the courts of Indiana, Iowa., Illinois, Tennessee, Ohio, Wisconsin, Pennsylvania, Maryland, Texas, California and Missouri. When applied to this case it will be found that the principles of law here announced forbid a recovery on the part of this plaintiff upon the case as made by his pleadings and proofs.

In his declaration the plaintiff distinctly alleges that “the said defendant put the said James Chappell as engineer, and the said Thomas Eubanks as fireman, in the control, management and charge of a steam locomotive engine on their said railroad, with instructions to run and operate the same; and on the first day of July, 1888, while the plaintiff was standing upon a flat car attached to a gravel train which was stationary on the defendant’s said railroad in the county of Jackson aforesaid, engaged in throwing dirt therefrom in accordance with orders and directions from the said defendant, the said Thomas Eubanks carelessly, negligently, unskilfully, and without giving any signal or warning whatever to the plaintiff or any one else, backed the defendant’s steam locomotive engine, of which he then and there had the • sole control, management and charge against the said gravel train with great force and violence, and thereby threw the plaintiff with great force and violence from the car upon which he ivas standing and engaged in throwing dirt as aforesaid, down and upon the road bed and track,” &c., whereby the plaintiff had his arm crushed, necessitating subsequent amputation.

The declaration expressly states further “that on the day and year last aforesaid the said James Chappell carelessly and negligently left the said steam locomotive engine, and put the said Thomas Eubanks in the sole control, management and charge thereof, and directed him, the said Eubanks, to back the said steam locomotive engine and couple it with said gravel train.

And the plaintiff further saith that it Avas the constant practice and custom of the said James Chappell to entrust the steam locomotiA'e engine to the sole control, management and care of his fireman to couple it Avith cars, "and the defendant had full notice and knowledge thereof, and plaintiff avers that the injuries which he received at the time and in the manner aforesaid resulted from the negligence, inexperience, incompetency and unfitness of the said Thomas Eubanks to meet the responsibility for which he was employed as aforesaid by the said defendant, and carelessness and negligence of defendant in employing and retaining in its employment the said Thomas Eubanks as fireman as aforesaid Avitli knowledge of his inexperience, incompeteney and unfitness aforesaid and without fault of plaintiff.” The gist of this declaration, though somewhat contradictory in its terms, is, that the defendant employed James Chappell as engineer of this engine and train, and Thomas Eubanks as fireman thereof ; that Chappell, who was employed by the defendant to perform the functions of engineer carelessly and negligently deserted Ms especial duties, delegating them to Eu-banks, Avho was employed by the defendant company in the capacity of, and to perform the duties of fireman on the same engine; and that in consequence of Eu-banks’ incompetency and want of skill as an engineer, in which capacity he Avas acting for the time being, the injury resulted to the plaintiff.

When we turn to the proofs, in which there is no conflict, we And that the plaintiff, at the time of the injury, with other operatives, was in the defendant’s employ, in charge of and under the control of a

section boss, one Capt. Johns, all of them engaged with this engine and a train of flat cars in charge of Chappell as engineer, with Eubanks as fireman, and one Dafiin as brakeman, in the. common work of hauling dirt or gravel and filling it in on the defendant’s road bed, while the plaintiff,' with oilier employes, under Capt. Johns as

section boss, were up on the flat cars shoveling off or unloading dirt therefrom, Chappell, the engineer, deserted his post on the engine, and negligently put Eu-banks, his fireman, to perform his (the engineer’

s) duty in uncoupling the engine from the cars and running in on a siding to switch out another carto be also attached to the train; in returning, Eubanks, through unskilf ullness or carelessness, (the proof does not show which) came back with too great velocity, whereby the car on which plaintiff was at work, was so suddenly and violently struck as to force it back 25 or 80 feet, whereby plaintiff was thrown off, his arm crushed under the wheels, etc-.

There is no effort either in the declaration- or in the proofs to show that Chappell ivas not a competent man for the position or duties of engineer, or that the engine or cars were defective in any way.

And although there is a distinct allegation in the cleelaration tliat Eubanks was incompetent and unfit for tlie position oí fireman, and that the defendant was negligent in employing him and in retaining him in that capacity, vet there is not a word of proof or any effort at any proof even tending to show that Eubanks was not perfectly competent to perform the duties of fireman for which, from the proof, he was employed by the defendant company. There is no proof that he was employed by the defendant for any other duties than those of fireman.

The plaintiff’s case, as it appears to us from the record, has been predicated upon the alleged negligence of the defendant company in employing and retaining Eubanks, an incompetent servant, for the duties of jire-man o'n its engine; but when the case comes to the proof, all of it, without conflict, makes out a case, not of incompetency of the fireman, as such, but of neylect of duty on the part of the enyinecr, as to whom there is no allegation or proof of any lack of x>erfeet competency. The proof is, that the plaintiff, with the other laborers engaged in unloading the cars, were under the control of Capt.

J ohns, the

section boss, and that all of them, with the engineer, fireman and brakeman, with this engine and train of cars, were there together engaged in one common enterprise, that of hauling dirt with the train and filling it in on the road bed. Under the established rules of law they were all fellow servants.

There is no allegation or proof that the defendant failed in its duty to furnish proper machinery with which to work; and there is no proof that for the respective duties and functions that they were each employed to perform by the defendant, there was any incompetency on the part of the fireman or engineer, or any other co-employe connected with the plaintiff in his work there and then.

The case as made by the'pleadings and proof is clearly one where the plaintiff’s injury has resulted from the negligence of his co-employe — the engineer — ■ in deserting his proper post to which he had been assigned by the defendant, and in resigning his duties temporarily to another who had been engaged by the defendant for entirely different and far less responsible duties.

The proof is that Chappell, the engineer, had no authority or control over the plaintiff or the other persons engaged in loading or unloading the gravel from the cars, but was there in the capacity of engineer or manipulator of the engine and cars that were engaged as an appliance. in carrying on the one common work in which they were all engaged, and in which each one had his respective duty to perform.

The duty of Chappell, the engineer, was to manipulate the engine, lie neglected and abandoned that duty to another, without the knowledge or consent, so far as the proof shows, of the defendant or any of its authorized agencies having the powers or authority of the defendant as principal in such matters, whereby the injury resulted to the plaintiff.

The practical manipulation of the engine -was not one of the special ox absolute duties that the defendant company was obligated or bound to perform in person, but was a duty that they were not only authorized, but required, to delegate to one competent and skilled in the handling of such machines, and having done this, so far as anything to the contrary in the allegations or proof's appears, they have done their duty, and are not liable for that engineer’s neglect or earless performance of Ms duty unless they were retaining him, at the time of the accident, after knowledge of gross or habitual neglect or careless performance of his duty.

As there is no allegation or proof of any negligence on the part of the defendant in employing or retaining thiv engineer in its employ, there can be no recovery upon that theory of negligence.

Though it is alleged in the declaration with some ambiguity, that Eubanks was employed by the defendant to operate or control the engine, or was ordered by the defendant to operate it on the occasion of the accident to the plaintiff, there is no proof whatever tending to establish either phase of this allegation; on the contrary the proof shows that so far as the defendant is involved in Eubank’s temporary handling of the engine, it had no instrumentality therein whatsoever, but employed him solely as, and assigned to him only the duties of a fireman.

The conclusions we have reached as to the non-liability of the defendant, from the testimony, are fully sustained in the following parallel cases: P. Ft. Wayne & Chicago Ry. Co. vs.

Lewis, 33 Ohio St., 196, where the plaintiff, a brakeman, in consequence of the negligence of both the conductor and engineer in failing to give the usual signal for starting the train, was thrown from the car by a sudden and unexpected jerk of the train forward, whereby his left arm was cut off by the car wheels, the fireman on the engine being at the time of the accident in sole charge of the engine, it was held that the engineer, fireman and injured brakeman were fellow-servants ; all being employes of one master, and engaged in carrying out a common object, and that the defendant was not liable to the one employe for an injury caused by the negligence of his co-employe.

In Gillshannon vs. Stony Brook R. R. Co., 10 Cush, (Mass.), 228, the plaintiff Avas an ordinary laborer on the defendant’s road bed at aplace several miles from his home. Each morning and evening, with the company’s consent, and free of charge for the ride, he rode with the other laborers on a gravel train of the defendant to and from the place of labor. While thus on the Avay to their work a collision took place Avith a handcar on the track, through the negligence of those having charge of the gravel train, and the plaintiff wrs throAvn off and run over by the train.

There Avas some evidence also tending to show that the train was not sufficiently supplied with brakeman. It was held that the defendant Avas not liable, the injury to the plaintiff having been occasioned by the negligence of a co-employe. In O. & M. R. R. Co. vs. Tindall, 13 Ind., 366, a set of hands were at work for the railroad company gravelling a portion oí tlie track. The gravel was conveyed irom tlie pit to tlie place where it was used upon the road by means of a train of gravel cars.

The same hands loaded and unloaded the cars, and rode back and forth on the cars between the places of loading and unloading. While thus emplojí-ed, the train, through the carelessness of the engineer, ran against an ox, was thrown off the track, and Tindall was killed outright. lie being a single man of only about eighteen years of age, and his father being dead, his mother brought suit against the company for his death. It was held, that the defendant company was not liable, the injury being caused to one servant by the negligence of a co-emplo3re of the same master. In Chicago & Alton R. R. Co. vs.

Keefe, 47 Ill., 108, Keefe was at work on a construction train, unloading railroad iron while so engaged, the conductor signaled the engineer to run his train on a siding to get out of the way of an approaching passenger train. The engineer, without giving the preliminary signal, as required by the rules, started his engine, whereby Keefe was thrown from the platform car where he was at work and injured. It was held that the company was not liable, the injury being the result of the negligence of a co-employe. In St. L. & S. E. Ry. Co. vs.

Britz, 72 Ill., 256, Britz was employed as a laborer on the defendant company’s construction train, used in hauling gravel, and his principal work was that of slioveler, in loading and unloading the cars. In the performance of this work it was necessary that he should ride on the train to and from the places of loading and unloading ; and while thus engaged, the train on which he was, through the negligence of the engineer or brakeman, ran into a passenger train standing on the track, whereby he -was thrown from the car and received injury.

It was held that he, the engineer and brakeman wmre co-employes engaged in the same work, and that the company was not liable for the negli gence of one of such co-servants.H. & T. C. R. R. Co. vs. Myers, 55 Texas, 110, is also analagous in its facts to the case under consideration ; and it is there held that the company was not liable. The charges given by the court to the jury are excepted to and assigned also as error.

Without re-quoting them or discussing them further than is already done in the discussion of the principle already commented upon, it is sufficient to say that we have carefully considered each instruction in connection with the facts proved, and our conclusion is that they state the law fairly and accurately, and are fully sustained in the principles they announce by the great weight of the authorities.

It is also assigned as error: “Because the evidence showed that the defendant was guilty of negligence in not furnishing a sufficient number of men to run the train, which developed at the trial, but on account of its not being alleged in the declaration, could not recover upon said ground.” When this fact was devel oped on the trial no application on behalf of the plaintiff was made to the court for leave to amend the declaration; but still, it is insisted here that under sec. 97, p. 834 McClellan’s Digest, it was the duty of the judge presiding, sua sponte, to amend in this particular.

This position is untenable and cannot be sustained. The language of the

section of our statute above referred to is as follows : “It shall be the duty of the courts of this State, and of every judge thereof, at all times to amend all defects and errors in any proceeding in civil causes, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not; and whether the defect or error be that of the party applyioig to amend or not; and all such amendments shall be made with or without costs, and upon such terms as to the court or judge may seem fit; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be so made, if duly applied for.” The statute clearly contemplates that an application to amend shall be made, but even if it did not we would be loth to adoj)t a construction of it that would impose upon the court in addition to his duties as judge, the further duty of acting as the attorney for both plaintiff and defendant in every cause; and that, besides, would give to the judge the power in any cause to come in, of his own motion, with unwanted amendments that might conflict seriously with the matured j)lans for the conduct of the cause mapxDed out by the attorney in charge of the case in whose supposed favor the unasked amendment was made.

Such a practice would be altogether inconsistent with all established rules touching the relative functions of judges and attorneys. There being no allegation in the declaration that the injury to the plaintiff was the result of negligence on the part of defendant in failing to supply its train with a sufficient number of hands, no testimony upon that point was either pertinent or admissible, and no recovery, in the absence of such allegation, could have been had. In Kennedy Bros. vs. M. & G. R.

R., 74 Ala., 430, the court says : “There can be no recovery upon a cause of action, however meritorious it may be, or however satisfactorily proved, that is in substance variant from that which is pleaded by the plaintiff.” It is also urged: ‘ ‘ That the court erred in refusing to allow the plaintiff to prove by James Chappell that Eubanks had told him (Chappell) when he came to fire for him, that he had never fired on a locomotive or run on one before.’ ” As before shown, there was no proof that Eu-banks was incompetent for the simple unskilled duties of fireman on a locomotive, and the case, as made by the proofs, shows that the injury to the plaintiff did not result from any incompetency or neglect of Eu-banks in the discharge of his duties as fireman, but resulted from his incompetency or carelessness in attempting to exercise the functions of engineer, for which latter dirties he was never employed by the de fenclant, but was put to perform them by Chappel, the real engineer, which action was negligence in Chappell; so the question, as to whether Eubanks ever had any prior experience as fireman on a locomotive, was immaterial, and there was no error in its exclusion.

The refusal of the court to allow the plaintiff to prove by the witness Henry Nelson that he heard Capt. Johns, the

section boss, at the time of the accident, say to Chappell, the engineer: “I told you to stop putting your engine in charge of that fireman; now you have killed a man,” is also assigned as error. We do not think there was error in excluding this evidence.

It is open first to the objection of being hearsay, but even if it were not subject to this objection, its admission would have been nothing more than an accumulation of evidence to establish the negligence of Chappell, the engineer, in putting his fireman in his place to discharge his duties; the evidence of which was abundant, but for which, as we have seen, the defendant company is not liable. Upon a review of the whole case we are unable to detect any such error as -would warrant us in disturbing the verdict of the jury; and the judgment of the court below is, therefore, affirmed.

It will be proper to say that we have examined

Chapter 3744 Laws of Florida, approved June 7th, 1887, the second

section of which seems to change entirely the rules of law discussed in this opinion, so as to render the master liable for an injury to one employe by the negligence of a co-employe, where there is no fault on the part of the one injured; but the provisions of this statute cannot affect this case, the whole occurrence involved therein and the trial of the issues presented thereby having transpired long prior to the enactment of this statutory change of the law.