The evidence was conflicting upon the question of negligence on the part of the engineer, Murphy. It was, therefore, indispensable to a verdict for plaintiff, which he could retain, that each instruction on his behalf should give the law to the jury with accuracy, and especially as to what, circumstances would fully negative the existence of the relation of fellow servants between Murphy and the deceased Kelly. We have collected the cases holding to the necessity of accuracy of each instruction in such cases, in Lake Shore & Michigan Southern Ry. Co. v. Elson (15 Bradwell, 80), at this term, and need not repeat them here.
The first instruction for plaintiff purports to state all the elements of a cause of action and what is requisite to a recovery. While doing so, the instruction purports to direct the jury as to what circumstances would be sufficient to negative the existence of the relation of fellow servants of a common master between the engineer, Murphy, and the deceased, Kelly, which had been relied on by defendant, as taking the case out of the range of the rule, respondeat superior. The only hypothesis of the instruction in respect to that relation was this: “and that said engineer was not engaged in the same line of employment as the deceased in the service of the said defendant company.”
As stated, the ground for finding that the relation of fellow servants between those persons did not exist in the sense that would leave the common master liable to the personal representative of the one for the negligence of the other, was incomplete. The hypothesis should have been added that one was employed in a wholly separate and disconnected branch of the business of the defendant from that of the other; or that there *?were no relations existing between them, or duties devolving upon them of such character as to bring them together, cooperating in any particular work. Indianapolis & St. L. R. R. Co. v. Morgenstern, Adm’r, 106 Ill. 216; Chicago & North W. R. Co. v. Moranda, 93 Ill. 302; S. C. 108 Ill. 576.
The ground stated in the instruction for negativing the existence of the relation in question, being imperfect and short of what the law required, it was misleading; and there being a conflict of testimony upon the question of negligence, we are required, by the established rule of the Supreme Court, to reverse the judgment and remand the cause.
Beverscd and remanded.