mail or baggage on the street, or be otherwise limited as to carrying freight or the location of its freight depot; but the legislature never intended that a system of street railways should be built within a city by a commercial railroad, even if the termini in appellee's articles of incorporation could be held sufficient. The court therefore erred in overruling the motion to dismiss. This error necessitates a reversal of the judgment in all of the appeals except those of M. V. Bennett and Edward B. Greene. The error in denying a change of venue requires a reversal in the case of Edward B. Greene and those petitioning for a change. Bennett neither moved to dismiss nor asked for a change of venue, and although he assigns error on the trial we find none which would require a reversal.

The judgment as to M. V. Bennett is affirmed, and he will pay the costs occasioned by his appeal. The judgments against the other appellants are reversed, and appellee will pay the costs of their appeals.

Judgments reversed.

CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY

ບ.

JOSEPH H. STRONG, Admr.

Opinion filed June 19, 1907-Rehearing denied October 2, 1907.

1. MASTER AND SERVANT-Servant clothed with authority over others is not their fellow-servant. A servant upon whom the master has conferred authority to control and direct the movements of the other servants is not, while exercising such authority, their fellow-servant.

2. RAILROADS-relation of foreman of a switching crew stated. The foreman of a switching crew is a fellow-servant of the other members of the crew when engaged in assisting them in their common duties, such as coupling or uncoupling cars, setting or releasing brakes or transmitting signals from one member of the crew to another; but he is not their fellow-servant in originating signals in pursuance of his authority to direct the work, or in performing

any other acts which are incident to his authority and which the other members of the crew have no authority to perform.

3. SAME-capacity in which foreman of switching crew gave a signal is a question of fact. In an action for damages for the death of a switchman, caused by the negligence of the foreman of the switching crew in improperly signaling the engineer to back the train, the question whether the signal was given in the foreman's capacity as foreman or in the capacity of a fellow-servant of the switchman is one of fact for the jury.

APPEAL from the Branch Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

CALHOUN, LYFORD & SHEEAN, (W. T. RANKIN, and BENJAMIN S. Cable, of counsel,) for appellant.

JAMES C. MCSHANE, for appellee.

Mr. JUSTICE SCOTT delivered the opinion of the court:

On September 19, 1903, John F. Chapman, a switchman in the employ of appellant, was, while performing his duties as such switchman, caught between two cars and killed. His administrator, who is appellee in this court, brought an action of trespass on the case in the superior court of Cook county against appellant to recover damages for the death of Chapman, alleging in his declaration that death was occasioned by the negligence of a certain foreman of appellant, who was a vice-principal, and not a fellow-servant, of deceased. Appellant interposed the general issue. A trial before a jury resulted in a verdict for $4000 in favor of appellee, upon which the court rendered judgment, after overruling a motion for a new trial and a motion in arrest of judgment. The railway company appealed to the Appellate Court for the First District, and the judgment of the superior court being there affirmed, the company prosecutes a further appeal to this court.

It is contended that the superior court erred in denying appellant's motion, made at the close of all the evidence, for a directed verdict. Reversal is sought on no other ground.

Chapman, at the time of the accident, was a member of a switching crew, composed of O'Brien, foreman; Wishart and Chapman, switchmen or helpers; Wilson, engineer; and Wood, fireman. The day on which the casualty occurred was the first day Chapman had worked with this crew. It was also the first day O'Brien had acted as foreman of the crew or of any other crew of which Wishart or Chapman were members. During the morning of the day in question this crew took twelve cars loaded with corn from one part of appellant's switch yards at South Chicago, in said county, to the elevator of the Rosenbaum Elevator Company, which was situated within the limits of appellant's yards at that place. In the afternoon of the same day the crew received orders to take twelve other loaded cars to the same elevator and to return with the twelve cars which had been taken to the elevator in the morning and which had been unloaded by employees of the elevator company during the day. The main tracks of appellant run north and south near this elevator. The elevator is east of such main tracks and is connected therewith by side-tracks, which extend east from the main tracks through the elevator building. The twelve empty cars stood upon one of the elevator side-tracks. Three of the cars were inside of the elevator building and stood uncoupled, with a space of a few feet separating each car from the next one. The remaining nine cars stood outside and west of the elevator and were likewise uncoupled and separated from each other. As the train approached the elevator, O'Brien, the foreman, who had general charge and control of the movements of this crew, told Chapman and Wishart that the elevator people were "in a hurry for a set," and instructed Chapman to go along the twelve empty cars as soon as they reached the elevator and open the knuckles and place the draw-bars in

position, and when that was done for Chapman to give him (O'Brien) a signal and he (O'Brien) would then signal Wishart, whom O'Brien at the same time directed to stand on top of one of the loaded cars attached to the engine, and that Wishart should then signal the engineer to back the train in hard, so as "to make them all up the first shot." When the elevator was reached the train of loaded cars was backed in upon the elevator side-track, the purpose being to couple all the empty cars together and attach them to the train of loaded cars, then to move the train with the empty cars from the side-track and thereafter return the loaded cars to the same side-track. Chapman, at the direction of O'Brien, made the coupling between the train of loaded cars and the most easterly of the detached empty cars. Chapman and O'Brien then proceeded east along the north side of the empty cars, opening the knuckles and placing the draw-bars of those cars in position to make the couplings when they should be pushed together. O'Brien stopped before they reached the elevator building. Chapman continued his work and passed into the elevator building alone, to arrange the knuckles and draw-bars of the three cars standing inside the building. The most easterly car in the building was an Illinois Central car and the one just west of it was a Santa Fe car. These two cars were equipped with automatic couplers. The coupler on the Illinois Central car was out of order and could not be operated with the pin-lifting device, the lever of which extended to the north side of the car. This defect was latent, and the court, at appellee's request, instructed the jury to disregard the counts charging appellant with negligence in regard to that defect. Chapman, upon discovering that the coupler on the Illinois Central car was out of order, started to pass between the Illinois Central car and the Santa Fe car, which were standing about three feet apart, in order to open the knuckle on the Santa Fe car. The lever to the pin-lifting device of the latter car was on the south side thereof, and

it was sufficient for the purpose of making a coupling to have the knuckle on one of the cars open. In the meantime, O'Brien, without waiting for a signal from Chapman, mounted the second or third car to the west of the elevator building and signaled Wishart to back the train. Wishart repeated the signal to the engineer, the cars backed up, and deceased was caught between the Illinois Central car and the Santa Fe car, while passing between them for the purpose aforesaid, and thereby killed.

The act of O'Brien in giving the signal to back the train is the basis of the negligence charged in the counts of the declaration upon which the case was submitted to the jury. Appellant does not deny that O'Brien was negligent in giving the signal to back the train, but contends that the giving of such signal was the act of a fellow-servant of Chapman.

It is first urged by the appellant that all members of a switching crew are, as a matter of law, fellow-servants. This contention is not in accordance with the law of this State. If the master has conferred upon one member of the crew authority to control and direct the movements of the other members of the crew, then, in exercising such authority, that member is not a fellow-servant of the others. Chicago and Alton Railroad Co. v. May, 108 Ill. 288; Illinois Southern Railway Co. v. Marshall, 210 id. 562.

The statement of the law last made is not in conflict with the authorities cited by appellant. Thus, in Chicago and Alton Railroad Co. v. Keefe, 47 Ill. 108, where the plaintiff was working as an employee of the railroad company on a construction train and was injured through the negligence of the engineer in starting the engine of the train without giving the preliminary signal and it was held that there could be no recovery because the engineer and plaintiff were fellow-servants, the injury did not result from the exercise of any authority conferred upon the engineer to control or direct the movements of plaintiff or other persons working on and about the train. The same is true of the case of