Wade Ex Rel. Moore v. McLean Contracting Co.

1 lo k n, J., after stating the case: In Sawyer v. R. R., 115 N. C., 24, the approved rule in reference to the admission of excerpts from pleadings by way of admission, is stated as follows: “It is competent for the plaintiff to put in evidence a portion of the answer containing an allegation or admission of a distinct or separate fact relevant to the inquiry, though it is only a part of an entire paragraph, without introducing qualifying or explanatory matter, inserted by way of defense, which does not modify or alter the fact alleged.” And its correct application here sustains the ruling of the Judge admitting the excerpt from the answer offered by the plaintiff. It was further contended by defendant, that as the statute', known as the Fellow Servant Act, is confined in its operation to railroads, the defense which arises under certain circumstances by reason of the- negligence of a fellow servant, is available to defendant. The position is correct so far as relates to the statute in question. In express terms, the act is restricted to railroads and their employees, but the facts of the case, do not require or permit the application of the doctrine referred to, for the evidence is to the effect that J. M. Crow, who held the position of vice-principal towards -the *180 plaintiff and the other. employees, was present, exercising personal supervision of the work in which these hands were employed, and that he gave the order which immediately caused the injury. The physical act may have been that of Bennett, the co-employee, but the order was given by Crow, the vice-principal, and, if it was negligently given, the result is imputable to defendant, for there is no suggestion or claim that Bennett acted in disobedience of Crow’s order, or that he failed to carry it out. And, if it were otherwise, if the evidence. tended to show that the plaintiff’s injury resulted as the proximate consequence of negligence on the part of Crow, the vice-principal, and that a negligent act of Bennett, the co-employee of plaintiff, concurred in bringing it about, in that event, defendant would be responsible. Eor it is recognized doctrine that if the negligence of the employer and a fellow employee concurs in producing an injury, the injured employee can recover of either if he himself is free from blame. As stated in 12 A. & E. (2d Ed.), p. 905: . “A master is liable for an injury to his servant, caused by the concurrent negligence of himself and a fellow servant, but which would not have happened had the piaster performed his duty. And it is only when the negligence of the fellow servant is the whole cause of the injury that the master is excused.” The Court, therefore, made a correct ruling in refusing to give defendant’s prayer for instructions to the effect, “that if plaintiff was injured by the misconduct of a co-employee, he could not recover.” And the defendant’s motion to non-suit was also properly overruled. There was evidence .tending to show negligence on the part of defendant, both in the means provided for the work, and the method and manner of conducting it, and the facts presented required that the cause should be submitted to the jury.. There is no error, and the judgment below is affirmed. No error.