Stewart v. Blackwood Lumber Co.

Clarkson, J. The lumber company contends that the plaintiff was not engaged in railroad service, and the incline at which plaintiff was working was not a railroad in contemplation of the statute. C. S., 3467 (Public Laws 1913, ch. 6, sec. 2), is as follows: “In all actions hereafter brought against any common carrier by railroad dam *140 ages for personal injury to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, however, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the'safety of employees contributed to the injury or death of such employee.” C. S., 3470 (Public Laws 1919, ch. 275) is as follows: “The provisions in this article relating to liability for damages shall also apply to logging and tramroads.” The court below charged the jury as follows on this aspect of the case: “The court charges you that if you believe the evidence the incline or railroad on which the incline machine or loader was operated was a railroad or logging road within the meaning of the law governing actions brought by railroad employees against railroads for personal injuries, or actions of this nature.” We think the charge correct. The spur-track or incline, in discussion, consisted of a narrow-gauge track of steel rails laid on cross-ties and extended from the main line of the road about one-half mile up into the woods to get out logs. The cars on this narrow gauge were pulled up said incline or steep grade road by means of steam skidder and wire cable, which was spooled or wound around the drum of the skidder as the cars were pulled up the track. On the record it is not disputed that this spur-track or narrow gauge road was used exclusively for hauling -logs out of the woods. In Williams v. Mfg. Co., 175 N. C., p. 226, decided 20 March, 1918, the plaintiff was injured while working on a logging railroad of the defendant. The Court said: “All the evidence shows that the defendant is what is commonly called a logging railroad, which is held to be a private «road constructed for the convenience and accommodation of lumbermen. Thompkins v. Gardner Co., 69 Mich., 58. The defendant does not hold itself out to the public as a carrier of anything, either of freight or passengers, but was constructed and is operated solely as an aid to the manufacturing business of the defendant.” After the Williams decision, the Legislature, Public Laws 1919, ch. 275 (C. S., 3470), enacted, “The provisions in this article relating to liability for damages shall also apply to logging roads and tramroads.” The clear language of the Act of 1919, ch. 275, supra, says that the provisions of this article (Fellow-servant rule abrogated, C. S., 3465)— contributory negligence no bar, but mitigates damages. C. S., 3467, applies to logging roads. *141 In. McKinish v. Lumber Co., 191 N. C., p. 836, this Court held: A logging road comes within the provision of our statute making contributory negligence of an employee an element of consideration by the jury in assessing the amount of damages recoverable, and is not a complete bar to the employee’s recovery in his action for damages. In Sigman v. R. R., 135 N. C., at p. 184, it is said: “It is settled that the fellow-servant law, chapter 56, Private Laws 1897, applies to railroad employees injured in the course of their service or employment with such corporation, whether they are running trains or rendering any other service. In Mott v. R. R., 131 N. C., at p. 237, it is said: ‘The language of the statute is both comprehensive and explicit. It embraces injuries sustained (in the words of the statute) by “any servant or employee of any railroad company. ... in the course of his service or employment with said company.” The plaintiff was an employee and was injured in the course of his service or employment,’ ” citing numerous authorities. The ifbove decision was written before the provision of the statute was made applicable to logging roads and tramroads, but since the Act of 1919, ch. 275, C. S., 3470, same applies with equal force to logging roads and tramroads. The entire evidence shows that the plaintiff was injured “in the course of his services or employment with such company,” etc. O. S., 3465. We have gone through the record and read the charge with care, and can find No error.