This action ivas brought by the defendant in error (hereinafter called the plaintiff) against the plaintiff in error (hereinafter called the defendant) to recover damages for injuries received on the 23d day of October, 1890, in a collision *994 between a freight and a working train belonging to defendant. Plaintiff was a laborer employed, with other persons, in cleaning up wrecks and making general improvements and repairs on defend- ; railroad, under the control and management of a road master. a point near Weston, a station in the Cascade mountains, the workmen were told by the road master to get on the work train, to be transferred a short distance, to a point where they were to be put at work. The workmen got onto the train, which consisted of three flat cars and an engine. There was a conductor of this train, but the road master directed its movements. Before leaving with the train, the road master sent a flagman to the next station east of Weston with directions, as some of the witnesses testified, to hold all trains at that point until otherwise ordered. The instructions to this flagman were in writing, and this writing was not produced at the trial, and, its loss not being satisfactorily accounted for, the court refused to allow the road master, who gave the instructions, to testify as to what was contained therein. The flagman was not present at the trial. While the working train was moving slowly up the grade, without any expectation that the road would be occupied, it was met by a heavy freight train coming on a down grade around a sharp curve, and a collision occurred, which demolished the working train, and in this collision the plaintiff was injured. The trial of the case resulted in a verdict in favor of the plaintiff.

The contention of the plaintiff in support of the verdict is that, in the absence of any testimony to the contrary, it must be presumed that the flagman performed his duty; that the collision occurred because the persons in charge of the freight train disobeyed the flagman’s orders; or that the road master failed to give the proper order to the flagman; or because the road master neglected his duty to put out another flagman when he moved the working train; or that the superintendent or train dispatcher, who had charge of the movements of the freight train, failed to give any directions with reference to the work train, which they should have known was occupying the track. The contention of the defendant is that the collision was brought about by the neglect either of the flagman, who was directed to stop the freight train, failing to perform his duty, or that the conductor and engineer of the freight train did not perform their duty by obeying the flagman’s orders, and that none of the persons in charge of the working train were in any manner at fault. There was no testimony tending to show any negligence whatever upon the part of the plaintiff.

The court, of its own motion, among other things charged the jury as follows:

Did the court err in giving this instruction? The flagman was a fellow' servant with the plaintiff, and, if his negligence caused the collision, then plaintiff was not entitled to recover. This portion of the charge is not objected to. The testimony in the case is that; the road master had charge of the movements of the working train. It is not claimed that the court committed any error in charging the jury that the road master and train dispatcher were not fellow' servants with the plaintiff. There is no testimony in the record tending, in the remotest; degree, fo show that either the conductor or the engineer of the working train was guilty of any negligence, and (here was no necessity of referring to them in the charge in the manner mentioned. The testimony in relation to the acts of the conductor and engineers of the freight train was to the effect that the flagman flagged the train before it reached Cole station; that the train stopped, and the flagman stated that the work (rain was W'orking in shed 26; that he did not give any other orders or make any other statement; that, when the freight train came to shed 26, the work train was not there; that it is the common custom, in such cases, for the freight train to move on, proceeding with care, until it should meet the working train; that, in pursuance of this custom, the conductor and engineers continued moving the freight train slowly at such a rate as, they claimed, would enable them to safely stop the train in case they were flagged again; that they were moving a heavy freight train, with two locomotive engines, at about eight miles an hour, going on a down grade; that the whistle was blown about 1,500 feet before striking the working train around the curve. The entire testimony was of such a character as to leave a doubt as to whose fault, if any, the negligence which caused the collision should he charged. The jury may have, however, inferred from the testimony that it was the fault of the conductor and engineers upon the freight train in not moving it with greater care and caution, and at a less speed, after being informed that the work train was on the road. It will he observed that the charge of the court makes the defendant liable if the jury should find as a fact that the cause of the collision was *996 the neglect of the conductor or engineers of the freight train. It is this portion of the charge that is specially claimed to be erroneous.

In Randall v. Railroad Co., 109 U. S. 478 , 3 Sup. Ct. 322, it was held that a brakeman working á switch for his train on one of the tracks of the railroad was a fellow servant with the engineer of another train of the same railroad corporation upon an adjacent track, and that he could not- maintain an action against the railroad corporation for an injury caused by the negligence of the engineman in driving his engine too fast, and not -giving due notice of its approach. In the course of the opinion the court said:

In Railroad Co. v. Andrews, 3. C. C. A. 636, 50 Fed. 728 , tbe circuit court of appeals, sixth circuit, following tbe principles announced in tbe Randall Case, and distinguishing- tbe case nnder consideration from that of Railroad Co. v. Ross, 112 U. S. 377 , 5 Sup. Ct. 184, and referring to numerous decisions of tbe .supreme court, held that a brakeman on one train is a eoservant of the conductor and engineer of another train, and, if injured or killed in a collision caused entirely by tbe negligence of tbe latter, tbe company would not be liable. In tire discussion of tbe case tbe court quotes with approval from Railway Co. v. Devinney, 17 Ohio St. 198 , as follows:

See, also, Railroad Co. v. Clark, 6 C. C. A. 281 , 57 Fed. 129 ; Mase v. Railroad Co., 57 Fed. 286 .

Under tbe principles announced in these decisions, it is apparent that tbe portion of tbe charge of tbe court which is specially objected to is clearly erroneous, and that tbe error is of such a character as to compel a reversal of the case.

- In Railroad Co. v. Baugh, 149 U. S. 368 , 13 Sup. Ct. 914, which contains tbe latest exposition of tbe supreme court of the United States touching tbe question as to who are, or are not, rice principals'or fellow servants of a railroad corporation, there is an able and exhaustive discussion of the question that is well worthy of a careful perusal. This decision explains tbe Ross Case, to a certain *997 extent it limits the doctrines therein announced, and points out with great clearness the character of cases that should "be distinguished from it. In the Ross Case it was decided that—

In the Baugh Case the court declared that the argument in support of this rule “gives a potency to the rule of the company it does not possess,” and in this connection said:

After further discussion as to what, was really decided in the Ross Case, it is said:

After limiting several ill tint rations as to the lint riches or departments of the railroad service that, are clearly separate and distinct, the court says that “from this natural separation flows the rule that *998 lie who is placed in charge of such separate branch of the service, who alone superintends and has control of it, is, as to it, in the place of the master.”

In ap'plying the principles of that decision to the facts of this case, it necessarily results in the conclusion that the court erred in charging the jury that the conductor and engineer of the work train “were not fellow servants of the plaintiff,” because neither of them had the right to command the movements of the train, or had any control of the persons employed upon it. They were, under the decision in the Baugh Case, fellow servants with the plaintiff, and for their negligence, if any, he could not recover. The road master was in charge of the working train, directed its movements, and had control of all the persons employed upon it, including the conductor and engineer. He was a vice principal, and for any negligence on his part, if any, that caused the collision, the corporation would he liable.

We deem it unnecessary to discuss the question as to whether the court erred in charging the jury that the burden of proof would rest upon the defendant, by a fair preponderance of evidence, to establish the fact of contributory negligence upon the part of plaintiff or his fellow servants, “by affirmative proof brought here in favor of the defense.” The objections raised to this charge will be readily obviated upon another trial by following the principles announced, in Railroad Co. v. Novak. 1

The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

Opinion not yet handed down.