Opinion
Greene & Turner, for plaintiff.
Judson & Sharpstein, for defendant.
HANFORD, J.
The amended complaint in this case states facts which in my opinion are sufficient to entitle the plaintiff to recover damages for a personal injury caused by negligence. The defendant has demurred, and by the demurrer assumes and contends that, as the plaintiff alleges that he was at the time of the injury employed by the defendant as a laborer in assisting to construct a railway, or an extension to a railway, leading to the defendant's mine, and the person guilty of the negligent act complained of was at the same time employed by defendant as a miner, therefore it appears upon the face of said amended complaint that the case comes within the rule exempting employers from liability to servants for injuries caused by negligence of fellow-servants. It may transpire, when all the facts are shown, that this case does come within the rule stated; but unless the plaintiff, and the one who inflicted the injury upon him, were at the time engaged in a common employment, as well as working for a common master, the rule is not applicable. Now, without further information than this pleading gives as to the requirements of the service in which each of the actors in this cause was engaged at the time of the injury, I cannot decide that, as a matter of law, a laborer engaged in constructing a railway for transportation of coal from a mine is a fellow-servant in a common employment with a miner while at work outside of the mine, handling lumber to be used in the mine in timbering up. Let an order be entered overruling the demurrer.