The opinion of the court was delivered by

: The railway company contended, on the trial that its servants were under the exclusive control of Swift & Co., and therefore it was not liable *788for any negligence on the part of the crew while doing the work of Swift & Co. in their private yards. It also claimed that if the man who interfered with the rope was one of its servants, yet he was not in the line of duty in taking hold of the rope, and that it was exempt from liability for his act. No evidence was given as to the arrangement between the railway company and Swift & Co. respecting the doing of/such work further than as above indicated. Yet theycourt, at the instance of the defendant below, instructed the jury that the railway company had the right to turn over its crew and engine to Swift & Co. for use in their particular work, and to put such crew under the entire control of Swift & Co., and, if it did so, the defendant had no control over such crew when it was engaged in the work in Swift & Co.’s yards ; and said crew, for such work, were Swift & Co.’s servants, even though in the pay of the railway company owning the engine ; and further, that a finding in favor of the railway company would not in any manner prevent the plaintiff below from recovering a judgment against Swift & Co. in an action brought for that purpose, if his injuries were caused by the negligence of the servants of Swift & Co. Other intructions were somewhat involved, and not entirely clear. There was no evidence to justify the assumption that the railway company had turned over its crew and engine to Swift & Co., except as above shown, and the suggestion that a recovery might be had against Swift & Co., who were not parties to this action, was perhaps prejudicial to the plaintiff below, and it should not have been given. It is possible that the railway company and Swift & Co. maybe jointly or severally liable. (C. R. I. & P. Rly. Co. v. Groves, ante, p. 601, 44 Pac. Rep. 628.)

*789It was held in Bedell v. National Bank, 16 Kan. 130, that where a new trial has been granted on the ground that the jury may have been, and probably were, misled by one of the instructions given, this court will' not reverse the order granting a new trial; and in Sanders v. Wakefield, 41 Kan. 11, 14, that a new trial ought to be granted whenever in the opinion of the trial court the party asking it has not in all probability had a reasonably fair trial or received substantial justice.

Tested by these rules, we cannot hold that the court erred in granting a new trial, and the judgment must be affirmed.