womorr qa. srunmsaxma. 13
supreme court, that if the trial court can plainly see that upon the case
made by the plaintiff, if a verdict in his favor should be rendered by
the jury, it would be incumbent upon the court to set that verdict aside,
then it is the duty of the court to direct a verdict for the defendant.
U on the showin here made and a 1 in to the case the law as I have
P g _ _ » PP_Y _ _ _
endeavored to state lt it follows that 1f the ur should ve the lain-
. . • . . · . Y
tiff a verdict upon the evidence as 1t stands, It would be the duty of the
court to set the verdict aside. The court must therefore direct a verdict
for the defendants, at this stage of the case.
Mr. Harphom. I would like to take a nonsuit.
Mr. Holstein. I object, and ask for averdict in favoryof the defendants.
The Court. It is not our practice to grant what is technically known
as a nonsuit. The proper practice would be for the plaintiff to ask to
withdraw a juror and discontinue the case. ·
Mr. Hotstein. I don’t think he has that right after submitting his case.
The Court. There is a statutor rovision of this state to the effect that
. . · Y P . . .
every person desiring to suffer a nonsuit shall be debarred from doing
so unless he do so before the jur retires from the bar. As I am ad-
.> . -. Y . .
vised it was the ractice of Jud e Daumroun a 1 mv b wa of an-
¤ _ P S _ » _PP Y s Y Y
alo this statute to such a case and 1S the ractice of Jud e Bnonesrr,
V gy . . * . . P . g .
to allow the plaintiff before the Jury retires to withdraw a Juror, and
discontinue. S0 I shall permit the plaintiff to take that course.
NOTE. I I
FELLOW·SEBVANTB—WH0 Ann. Within the meaning of the rule exempting the mas-
ter from liability for injuries resulting to a servant from the negligence of a co-em-
plocye, fellow-servants are deiined to be persons engaged in the same common service,
un er the same general control. Gravelle v. Railway Co., 10 Fed. Rep. 711. They must
be directly co-operating with each other in a particular business, in the same line of
employment, or their usual duties must bring! them habitually together, so that they
may exercise a mutual influence upon each ot er promotive o dproper caution. Rail-
way Co. v. Snyder, (111.),7 N. E. Rep. 604. A trac -repairer an an engineer are held
to be fellow-servants. an Wickle v. Railway Co., 32 Fed. Rep. 278. So, also, abrake-
man employed by a railroad company on one of its trains, and an engineer working for
the same company on a different train. Randall v. Railroad Co., 3 Sup. Ct. Rep. 322.
And a statiomagent, required to look after the safety of switches, and to see that the
main track is kept free and unobstructed for the passage of trains, is afellow-servant of
_a brakeman or engineer. Toner v. Railway Co., (Wis.) 31 N. W. Re . 104· Brown v.
Railway Co., (Minn.) 18 N. W. Rep. 834; Dealey v. Railroad Co., (Pa.Y4 Atl.   170.
An inspector of cars is held to be a fellow-servant of a brakeman. Smith v. otter,
(lMich.) 9 N. W. Rep. 273. The foreman of a gang of section or track men engaged in
t e discharge of his ordinary duties in the course of his employment is afellow-servant
with them. Olson v. Railway Co., (Minn.) 35 N. W. Rep. 866. Section or track men
are held to be fellow-servants with the engineer or brakemen of a train. Connelly v.
Railway Co., gMinn.) 35 N. W. Rep. 582. It is immaterial that a negligent servant is
in a position o greater responsibility than the injured one, or in a different line of em-
plgyment, so long as both are in the same general business. Mining Co. v. Kitts, (Mich.)
3 . W. Rep. 240. The rule obtains regardless of the fact that one employe may be the
superior in rank of others in the same general undertakin%Bunless he occupies t_ e place
of vice-principal. Railway Co. v. Adams, (Ind.) 5 N. E. p. 187; Copper v. Railroad
Co., (Ind.) 2 N. E. Rep. 74 · Fraker v. Railway Co., (Minn.) 19 N. W. Rep. 349; Peschel
lv. Railway Co.,   21   W. Rep. 269. A mining boss 1B a fellow-servant of other
employes. Reese v. iddle, (Pa.) 3 Atl. Rep. 813. But a foreman having entire super-
vision of a mine, and all its workings, employing and discharging laborers, and pre-
scribing their duties, is not a co-employe wit in the rule which exempts the master
from responsibility for the ingggies received by a servant through the negligence
of afellow-servant. Reddon v. ilroad Co., (Utah ) 15 Pac. Rep. 262. And a conduc-
tor is held to be a fellow-servant of a brakeman. Pease v. Railway Co., (Wis.) 20 N.
W. Rep. 908. on the other hand, in limitation of the general rule, it is held that the
master is liable for injuries occurring to an employe while doing an act beyond the