Page:Federal Reporter, 1st Series, Volume 10.djvu/724

 713 FBDBBAL BfiPOKfen. �Minueapolis ; that while in their employaient (I think it was some time in November, 1879) he was ordered by the assistant yard-master of the Company (Mr. McCummings, I think, is the name) to make a coupling between an engine and tender and a certain freight car standing upon one of the tracks in that yard. He claims that, under the circumstances of the case, this was a duty whieh was extraordi- narily and unusually dangerous and hazardous, and that on account of the negligence of the assistant yard-master, Mr. Cummings, in ordering him to make the coupling under the circumstances, and in failing to give an order or signal to check the speed of the approach- ing engine, he was injured without any fault or negligence on his own part. He also claims that the assistant yard-master, and the engineer who was in charge of the engine and tender, were negligent, unskil- f ul, and unfit persons for their places, and that the defendant, the rail- road Company, had knowledge of the fact. He also claims that the machinery was not in proper condition, because the tender which he was required to couple to the freight car had no coupling link upon it. These are the facts upon which the plaintifif relies, which he claims to have established before you. �On the part of the defendant it is elaimed, in the first place, that their agents were not negligent; that the engine and tender were approaching the freight car at about the usual rate of speed, and not at an extraordinary or dangerous rate ; that the duty which theplain- tiff undertook to perfonn in that case was not unusually hazardous or dangerous ; and that there was no negligence on the part of the assistant yard-master in ordering him to do the duty under the circum- stances, nor on the part of the engineer in running the engine up to the freight car. Defendant further claims that if there was negli- gence on the part of any of its individual agents, it was negligence of a fellow-servaut employed in the same common service with the plaintiff, and that, therefore, the plaintiff cannot recover ; thelaw being that the employer, the railroad company, is not liable, is not respon- sible, for injuries which one of its servants may receive on account of the negligence of another fellow- servant employed in the same com- mon service with the party injured. �As to the defeet in the machinery by reason of the absence of the link from the tender, the defendant claims that that was not a defeet ; that it was not unusual to use tenders that had no links attached to them; that it was common toleave them inside the tender or lying upon the track to be picked up and used as occasion may require. �These are the issues upon which you have heard the testimony. It ��� �