#### Smith *v.*Western and Atlantic Railroad Company, and *vice versa.*

Per Curiam.

1. If a person under due authority from a railroad company

goes upon one o'f its engines hauling a train, for the purpose of learning the duties of a fireman, and performs services for the company in order to gain such experience and knowledge of the wor-k as will render him competent to act as a regular fireman and to receive pay as such, thus becoming what is called “a learner fireman” or “an apprentice fireman,” he is, while thus acting, a servant of the company, although he receives no pay during the time of such preparatory service, and as such servant he is a fellow servant with the regular servants employed in the operation of the train on which he is engaged. Weisser *v.*Southern Pacific Ry. Co., 148 Cal. 426 (7 Am. & Eng. Ann. Cas. 636, 83 Pac. 439).

2. If only certain agents or employees of a railroad company have the authority to select “learner” or apprentice firemen and to permit them to go upon an engine of the company, with a view to learning the duties of a fireman, and some other employee of the company, without authority, issues a permit to a person for that purpose, his going upon an engine of the company under such a permit would be unauthorized; and if while wrongfully there he should be injured by the negligence of the engineer in running the engine, lie would stand as a trespasser and not as an employee.

3. -Under such circumstances, if the engineer and conductor of the train permitted such person to go upon the engine and act as a “learner” fireman, they having no authority to grant such permission, or to select such apprentice fireman, his presence upon the engine would not thereby become lawful, and he could not claim to be properly there as an employee of the company.

*4.*If the plaintiff’s husband be found to have been an employee of the company, the rule laid down in the Civil Code, § 2323, which provide ; that if the person injured is himself an employee of the company, ami the damage was caused by another employee, without fault or negligence on the part of the person injured, his employment by the company shall be no bar to the recovery, would apply, but the interpretation of that rule would also apply to him, so that if he were guilty of negligence contributing in any substantial degree to his own injury, he could not recover; the cause of action having originated prior to the act of 1909 (Acts of 1909, p. 160).

5. The evidence was such as to authorize the court to submit to the jury the question as to whether plaintiff’s husband at the time of his death was a trespasser or an employee of the defendant, and it was error on the part of the presiding judge to fail to charge appropriate law on the subject of master and servant relative to a railroad company and its employees. *Morris*v. *Georgia Railroad & Banking Co.,*131 *Ga.*475 (62 S. E. 579) ; Weisser *v.*Southern Pacific Ry. Co., supra.

*(a)*The evidence was not such as to' authorize a submission to the jury of the question of whether the decedent occupied the legal relation of a licensee towards the defendant company; and the mere employment of the word “licensee” by one of the witnesses, in describing the duties of *217a "learner” fireman did not create such legal status, with the rights and liabilities incident thereto.

March 3, 1910.

Action for damages. Before Judge Fite. Catoosa superior court.

August 5, 1908.

*Atkinson & Born,*for plaintiff.

*Tye, Peeples & Jordan*and i?. *J. & J. McCamy,*for defendant.

6. If it should be determined that the decedent was an employee of the defendant company at the time of the occurrence which resulted in his death, it should then be determined what were his duties as a “learner” fireman, and whether he was in violation of any duty imposed upon him, or was guilty of negligence in any material degree contributing to his injury.

7. Without intimating any opinion as to what should be the.finding of the jury in regard to the issues of fact submitted to them, it is held on the bill of exception of the railroad company that it can not be declared as a matter of law that a verdict was demanded in its behalf.

*Judgment reversed in the first ease, and affirmed in the second.*

*All the Justices concur, except Fish, G. J., absent, and Atkinson, J., disqualified.*