
    Evans v. Carbon Hill Coal Co.
    
      (Circuit Court, D. Washington, N. D.
    
    August 24, 1891.)
    Master and Servant — Feii,ow-Servant3.
    A complaint wherein an employe, engaged in constructing a railway for transporting coal from defendant employer’s mine, sues for injuries alleged to have been caused by tho negligence of a miner, employed by defendant, while hauling lumber to be used in the mine in timbering up, is not demurrable on the ground that it shows the injury to have been caused by a fellow-servant.
    At Law.
    Action by J. R. Evans against the Carbon Hill Coal Company for injuries caused by the alleged negligence of an employe of defendant. Defendant demurs.
    
      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 staled; hut 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. How, 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 tho 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.  