O'Neal v. South & Western Railroad , 152 N.C. 404 ( 1910 )

Action to recover damages for personal injury. A motion in apt time was made to nonsuit the plaintiff, and was sustained. The plaintiff excepted and appealed.

The facts are sufficiently stated in the opinion of the Court. Taking all the evidence in its most favorable light for the plaintiff, it tends to prove that he was employed by one Ellis, foreman of the masonry force of defendant, as a blacksmith for the construction forces of defendant at Camp Ten, near Marion, N.C. Plaintiff and two fellow-servants were endeavoring to hang up a coil of rope weighing from two to three hundred pounds upon a peg in the toolhouse. For some reason unexplained the fellow-servants let fall the coil on plaintiff's shoulders and injured him.

Omitting any discussion of the question of negligence, it is (405) plain that if any negligent act caused the injury, it was the act of a fellow-servant, for which the defendant is not liable.

According to all the evidence, the road was being constructed, not operated. To use a nautical term, the "ship was not in commission." The plaintiff was employed as a blacksmith on the construction force.

While it is not necessary to prove that the plaintiff was injured by a fellow-servant while actually on a train or operating it, it must appear to bring the case within the railway fellow-servant act, that he was injured while performing a service necessary to or connected with the operation of the railway as a common carrier.

This plaintiff was not performing a service necessary to or connected with the use and operation of a railroad. He was the blacksmith for a force engaged in constructing bridges, and was hurt while attempting to hang up a coil of rope, twenty miles from the then terminus of the railroad.

The law governing the case is so fully stated in the opinion of this Court by the Chief Justice in Nicholson v. R. R., 138 N.C. 516; that it is unnecessary to further discuss the subject.

Affirmed.

Cited: Bailey v. Meadows Co., post, 604; Twiddy v. Lumber Co.,154 N.C. 239; McDonald v. R. R., 165 N.C. 625.