Gurganous v. Camp Manufacturing Co.

EeogdeN, J. Was the plaintiff engaged in the operation of a logging road at the time of his injury? Eecognizing that the risk and hazard of railroad operations were of such imminently dangerous character, the liberal and enlightened thought of the State undertook to protect and safeguard workmen who, in the pursuit of their daily bread, were constantly subjected to such hazards. The first step toward such liberalization was taken by the courts, and thereafter the law-making body began to extend it further by statute. Consequently, subsequent to 1897 an employee of any railroad company, operating in this State, is no longer barred of recovery for negligence by reason of the application of fellow-servant doctrine. c. S., 3465. Thereafter the full rigor of the defense of contributory negligence was modified and softened by C. S., 3467. In 1919, by C. S., 3470, it was declared that the statutory interpretation of contributory negligence, as applied to “a common carrier by railroad” should also apply to logging roads and tramroads. *528 In the ease at bar the jury bas found that the plaintiff was guilty of contributory negligence. Such finding bars recovery unless the plaintiff at the time of his injury, was engaged in a railroad operation as understood and defined by the court. The trial judge so held as a matter of law. There is no contradiction in the evidence, and hence the correctness of the ruling is determinative of the controversy. The uncontradicted evidence discloses that the defendant at one time had been engaged in a manufacturing project, and as an incident thereto, operated a log road upon tracks extending some twenty miles into the woods, and further, that all of said tracks had been torn up and removed, all locomotives removed, and on the date of the injury the defendant was in the act of dismantling and tearing down the lumbering-plant and machinery for the purpose of transporting the same to another point. The plaintiff was operating a motor car upon a spur track on the mill yard, ostensibly hauling the dismantled material to the main line of the Coast Line Railroad for transportation. It appears from the charge that the spur tracks upon which the motor car was operated, were owned by the defendant. It is not deemed to be particularly important or material whether the plaintiff was operating a locomotive or a motor engine, or the size of the rail, or length of the spur tracks in the mill yard. The avowed purpose of the law, as expressed in statute and decision, was to protect employees engaged in railroad operations, or in such work, service, or employment reasonably incidental to a railroad operation. This thought prevailed in the decisions construing the applicability of the fellow-servant doctrine. For instance, in Nicholson v. R. R., 138 N. C., 516, 51 S. E., 40, discussing the fellow-servant statute, the Court said: “Rut the act applies only to employees of a railroad operating, not that such employees must be operating the trains, but they must be employees, in some department of its work, of a -railroad which is being operated. Such business is a distinct, well known business, with many risks peculiar to itself, and all the employees in such business, whether running trains, building or repairing bridges, laying tracks, working in the shops, or doing any other work in the service of an operating railroad, are classified and exempted from the rule which requires employees to assume the risk of all injuries which may be caused by the negligence of a fellow-servant. It is not necessary to show that the plaintiff was injured by a fellow-servant while operating a train, but he must show that he was injured while performing a service necessary to or connected with the use and operation of the road. . . . Here the railroad was being constructed, not operated. . . . It does not matter that elsewhere the same employer was operating a railroad. It was not doing so at this point. Here it was not a railroad at all. It was constructing, building, what later would become *529 a part of an operating railroad.” See, also, O'Neal v. R. R., 152 N. C., 404, 67 S. E., 1022; Bailey v. Meadows Company, 152 N. C., 603, 68 S. E., 11; Twiddy v. Lumber Co., 154 N. C., 231, 70 S. E., 282. Moreover, in Williams v. Mfg. Co., 175 N. C., 226, 95 S. E., 366, this Court said: “Both railways and logging roads are railroads, i. e., roads whose operations are conducted by the use of the rails, and come within the general term 'railroad.’ ” See, also, Stewart v. Lumber Co., 193 N. C., 138, 136 S. E., 385; Lilley v. Cooperage Co., 194 N. C., 250, 139 S. E., 369. The determining inquiry is whether the dismantling of a mill and its machinery and hauling the same by motor bus on spur tracks in the mill yard to the point of shipment, is a railroad operation or a logging road operation. It has been definitely decided in this State that the construction of a railroad is not a railroad operation, and hence by logical analogy it .would seem manifest that the destruction or dismantling of a railroad and lumber plant would not constitute a railroad operation. Spur tracks, maintained in a mill yard for shipping, loading and unloading material, are essentially plant facilities and not railroad. Thus, it would not ordinarily be assumed that a cotton mill operating spur tracks in the mill yard, for loading and unloading purposes, was engaged in railroad operations. Therefore, the Court is of the opinion that the ruling of the trial judge upon the fourth issue must be held for error. Reversed.