STONE, J. This is an action on the case brought to recover damages resulting from an injury in which the plaintiff lost his right hand and forearm on March 2, 1908. The defendant operated shops in the city of Jackson, where it manufactured gasoline motors.

The Jackson Automobile Company, another manufacturing company of the same city, had an arrangement with the defendant, whereby it purchased the motors of defendant, which were tested and inspected at the shops of the defendant before they were accepted by the Jackson Automobile Company. The work of inspection was done in a room of defendant, called the testing room, which was off by itself on the ground floor at the back end of the main building of the defendant. The defendant had a man named Crankshaw in its employ, who was present in this room to exhibit the motors and represent it at the tests; and the plaintiff was there in the employment of and representing the Jackson Automobile Company to see that the motors were up to a certain standard before they were accepted by the latter company. The defendant manufactured two different styles of motors, one of which was known as model "E," and the plaintiff was injured while getting ready to apply the belt test to a motor of this model.

The plaintiff was instructed by his employer, the Jackson Automobile Company, to go to the defendant's factory and see that the motors were tested, and that they came out right, to avoid trouble after the motors came to the Jackson Automobile Company. He was instructed by his employer to have each motor "pulled under a load," and to that end the testing room aforesaid was furnished with a dynamo and electrical fixtures, so that the motor could be run under a load, in order to develop and correct any imperfections and determine its horse power. The method of operation was substantially as follows: The motor was set upon a stand on the floor of the testing room, and a belt run from the pulley on the transmission shaft of the motor to the line shaft; and the belt from this

line shaft in turn drove the dynamo and generated the electricity, which, by the aid of electrical instruments, determined the horse power. In other words, the gasoline motor or engine drove the line shaft, the latter in turn drove the dynamo, and the dynamo operated the electrical instruments which determined the horse power.

The motors were assembled in another part of defendant's factory, and were then brought into the testing room. Plaintiff's inspection commenced as soon as they were brought into the testing room, and the motors would be on the stand from five to eight or ten hours before they would be passed. The plaintiff, in the course of examining and testing these machines, would go all over them and do whatever came in his way to do, or was necessary, in order to satisfy himself that the machines were in perfect working order. The plaintiff and defendant's representative worked together a great deal of the time, and if any trouble or peculiar noise was detected sometimes one would locate it and sometimes the other, when the proper steps were taken to remedy it. In manipulating the motors or machines the plaintiff "did whatever suited his fancy," and this was done sometimes after defendant's representative had got through with them; and sometimes he would call attention to something that had been developed in running a motor "before the motor run 30 minutes." If a pulley was loose and required tightening, or if the belt was to be put on in the course of examining the machines, sometimes plaintiff would do it, and sometimes the defendant's representative would do it. It was customary for either one to do it, just as it happened to be convenient. The last thing to be done in testing these motors was to take what was called the dynamo test, or belt test, by which the horse power was determined. For the purpose of making this belt test, a pulley was placed upon the transmission shaft of the motor, from which a belt was run to the main shaft, as explained before. This pulley was used for no other purpose.

The plaintiff and Crankshaw had been working at this

business for about three months before the injury complained of. On the day in question the motor had been upon the stand undergoing inspection and examination during the forenoon, and when the noon recess came there was practically nothing left to be done but to take the belt test. When plaintiff returned to the shop after the noon recess, he went over to where the motor was to proceed with the test. The motor was not then running, was still, and Crankshaw, who was to take part in the test, was standing by it. When plaintiff got to the motor, he found that the pulley upon the transmission shaft of the motor to which they would have to apply the belt, in order to make the test, was loose. He wiggled the pulley, and as Crankshaw saw him doing this, and saw that it was loose, he said to plaintiff, "Ain't that d-d thing ready yet?" To which plaintiff replied: "No; there is no key in it. I will fix it." Plaintiff then reached and picked up the key, which was on a little shelf next to him, and inserted it into the shaft, pushed the pulley, and started to screw up the follower with a wrench. The follower bound a little, as was often the case with new motors, which made it necessary to engage the transmission shaft, so as to hold it while the follower was turned up. This was done by operating what was called "the gear-shifting rod," and in order to do this it was necessary to push hard on the rod. The plaintiff testified that the only way that he could do that was to put his hand through the pulley, so as to get a direct push on the rod. He further testified that this was the ordinary and most convenient way of doing this. Just before the plaintiff came over to the motor, Crankshaw had been running it, and had detected a rattling in a valve, and, stopping the motor, he had remedied the rattling, which was a matter of minor importance, and was adjusted by turning a little set screw.

In order to start the motor, it was usually necessary to crank it, the same as an automobile; but sometimes it would start under its own compression, when the electric

switch or button was turned. This button was on the wall about midway of the motor, and near where Crankshaw stood, so that all he had to do to turn this button was to reach up and touch it.

After having the conversation with plaintiff above related, and while the plaintiff was bent over tightening the pulley, and had his right hand through the spokes of the pulley to push the shifting rod, Crankshaw reached up, turned the switch, set the pulley in motion, and so injured the plaintiff's right arm that it had to be amputated.

The pulley revolved rapidly; would start off at from 500 to 2,000 revolutions a minute. Crankshaw testified that plaintiff in putting his hand through the spokes was acting in the customary and convenient way, and in the way which he had done himself, and had seen others do it. He did not know and could not tell why he had turned the switch and started the machine, and testified that he would not have thrown the switch had he thought of plaintiff's position; that he forgot for the instant plaintiff's position, though he knew that plaintiff was at the pulley. As soon as Crankshaw had thrown the switch and set the machine in motion, he realized what he had done, and immediately threw the switch back and stopped the machine; but it was too late to save plaintiff's hand. Had he not set the machine in motion, it was perfectly safe for the plaintiff to put his arm through the pulley and push the shifting rod as he did.

The foregoing statement of facts was somewhat modified by the plaintiff and Crankshaw (the only witnesses sworn) on cross-examination, and we have stated the case in the light most favorable to the plaintiff, as warranted by the evidence.

At the close of the plaintiff's case, defendant's counsel moved the court to direct a verdict for the defendant upon the following grounds:

(1) That no negligence of the defendant had been shown.

(2) That the plaintiff was guilty of contributory negligence.

The motion was granted, and a verdict for the defendant was directed by the court upon both grounds stated, and a judgment for the defendant was entered. The plaintiff has brought the case here for review, and many errors are assigned. The twenty-seventh assignment of error is to the effect that the court erred in directing a verdict for the defendant, for the reason that under the evidence in the case the question of the defendant's negligence, as well as the question of plaintiff's contributory negligence, were questions which should have been submitted to the jury. This assignment of error raises the meritorious questions in the case.

1. Was there evidence of defendant's negligence? This question involves another: Were the plaintiff and Crankshaw fellow-servants ?

The trial court charged the jury that if Crankshaw was guilty of negligence the defendant would be responsible for his negligence. We cannot agree with the trial court that, as matter of law, Crankshaw was not guilty of negligence. Whether he failed to exercise such care, prudence, and forethought as duty required to be given or exercised under the circumstances was, at least, a question for the jury. The negligence of Crankshaw, if any, must, under the evidence, be imputed to the defendant, unless the plaintiff and Crankshaw were fellow-servants, or unless the plaintiff was a mere volunteer.

The undisputed evidence shows that the plaintiff was in a distinct and separate employment from that of Crankshaw, and they were in no sense under a common master, or subject to the same control. Kastl v. Railroad Co., 114 Mich. 53 (72 N. W. 28).

In 26 Cyc., at page 1284, the rule is stated as follows:

"Servants of separate masters, although engaged in a common undertaking, are not fellow-servants. To constitute that relation servants must be in the employ, or