L. S. & M. S. Ry. Co. v. Burtscher ( 1906 )

It is ordered and adjudged by this court, that the judgment of tbe said circuit court be, and tbe same hereby is, reversed; and this court proceeding to render the judgment which the circuit court should have rendered, reverses the judgment of the court of common pleas on the ground that, on the issues submitted to the jury by the trial court as to whether the tower-man of the plaintiff in error at the time of the injury, was the superior of the engineer, defendant in error, an analysis of all the evidence introduced by both parties to the action, and found in the printed record, shows that the said towerman, at the time of the injury complained of, whs the fellow servant of said engineer, defendant in error, and that in doing the alleged act complained of as negligence, said towerman was acting in the capacity of such fellow servant. This finding is independent of Exhibit “4” in dispute as to its being a part of the bill of exceptions, as there is nothing in said exhibit, if considered, which tends to affect the above finding.

It is further ordered and adjudged that this cause be and the same is remanded to the court Qf common pleas for new trial on the issues joined between the parties by their pleadings and for further proceedings according to law.

Price, Summers and Davis, JJ., concur.