We rehear the case upon the ground, that the ■defendant’s counsel, by reason of what he understood to be an intimation from the Court in his favor upon the question of the liability of a master to a servant for the negligence of a fellow servant, did not present his views as fully as he otherwise would have done. But'we are surprised that the learned counsel did not discover from the opinion filed, that we stated that and all his other points, and referred to his ■ full brief and stated that we had fully considered them; .■and that, conceding for the sake of the argument, all his *6positions to be in His favor, yet, outside of them .i, there was this against the defendant, that he had no servant at the break in the road whose duty it. was to warn the train ; that this was negligence which nothing could excuse•, and upon that ground the defendant was liable.
The defendant’s counsel now insists that we are mistaken in the facts , for that the defendant.did have a servant, the section master, whose duty it was 'tó'be there and warn the train and that he neglected his duty,' and that the injury to the plaintiff’s intestate was the neglect of-the section master, a fellow servant of the deceased, for which the master, the defendant, is not liable.
Let ufe see if we are mistaken. The answer of the defendant “denies that the intestate of the plaintiff was injured or killed by any wrongful act, neglect or default of the defendant, or of the section master, • * • * or bjr any wrongful act or default of any of the servants, agents or employees of the defendant.” After that denial, what matters it that the counsel alleges the contrary. The-answer-is conclusive against the defendant; only the plaintiff' can controvert it. And when we look to the evidence it is just as positive — we mean the evidence on the part of the defendant. The General Superintendent .testified-that, “her did not think the section master was to blame after he had investigated the case. He kept him on the road afterwards.” And again, when asked why he thought he was not to blame, he answered that he had been,ordered to another place by the road master, “and that one man could not be at two places at one time.” And again he said that if he had not been ordered away to another part of the road, still his duty required that he should have' been at another part of the road.; some ten miles distant. Now, it is riot pretended that it was anybody’s duty except the section master’s to be at the place of accident and give, the warning; and it is expressly proved by the defendant that he had been ordered some ten miles *7away, and tbat it would have been his'duty to be away, if he had not been ordered; and therefore it was not his duty or within his power to be at the place of the accident. Who-ought to know whether he was to blame- better than the General Superintendent? He says he was not to blame, and. he keeps him in service. In what a dilemma does the counsel place his client ! If it was the duty of the section master to be at the break and give the warning, and he neglected' his duty and allowed an excursion tr^-in full of human beings, to pitch into a gorge and cripple and kill, and the defendant kept him employed after he knew of his negligence, it makes, the defendant a monster nuisance which ought to be abated by the force of public indignation.
It is not alleged or proved, that it was the duty of the section master to go over the whole of his section after every storm and before a train passes. It is simply said that it is-his duty to go over his section after every storm, but how-long after, is not said. The General Superintendent says expressly, it ivas not his duty to have gone over it before this train passed, although ten hours had elapsed, and that.he was not to blame for not having done it. And j ust here is, where we said in our opinion, at last term, the defendant’s. ■ liability comes in. lie thinks it enough to have a section master and hands enough to keep the road in order, taking; his time for it. We say that there must be servants enough, not only for ordinary, but for extraordinary occasions, and that after every storm threatening the road, every foot of it must be examined before a train passes, and that it will not-do to say that “one man cannot be in two places at onm time,” but there must be a man for every place, as need may be. Here, there was no servant at the place of danger and no one whose duty it was to be there. Hpon this single-ground we put our decision at last term and we see no reason to change it.
It is proper that I should say, that I did not a£ the last *8item, as the defendant’s counsel supposes, overlook his points «Or his authorities. I never do that. I examined carefully ¡Ponton’s case in 6 Jones Rep., the first case in our Court, and the English cases there cited. I also examined the Massachusetts case, and other American cases; and since the last argument I have still further examined later English and' American cases ; and I think it may be regarded as settled,
First. A master may be liable to a servant for injuries received in his service from the negligence of the master.
Second. A master is liable to a servant for injuries received from the negligence of a fellow servant, if the master was negligent in selecting a bad one.
Third. He is also liable where he negligently selects bad machinery, tools, &e. ■
Fourth. The master is not liable to a servant for injuries-received from the negligence'of a fellow servant in the same employment. Who is a fellow servant, and what is the same employment, are often questions of difficulty, and depend upon the circumstances of each case.
The decision at the last term will stand, and the defendant will pay the cost of the rehearing.
Per Curiam. Judgment accordingly.