Wood

This action was brought to recover damages for an injury received by plaintiff while in the defendant’s *592 employ. There was a verdict in his favor for $5,000, notwithstanding which the court entered judgment dismissing the action. By an express agreement in the court below, all questions are eliminated, excepting only the one whether, as a matter of law, the evidence is sufficient to support the verdict. The record is very brief, and the testimony is without substantial conflict. The plaintiff was one of 500 or 600 men employed-by the defendant in the operation of its sawmill at Potlatch, Idaho. On September 21, 1911, the day of the injury, he and others were engaged in repairing the “burner,” and while in the discharge of his duties he was struck upon the head and severely injured by a piece of timber thrown down from the conveyor by one Fennell, a coemployé. It is conceded that the act constituted negligence upon the part of Fennell, and that the plaintiff was free from blame; and the only question, therefore, is whether Fennell’s negligence is to be imputed to the defendant. The court below held that, under the fellow-servant rule, the defendant was not chargeable therewith.…