O'Neal v. South & Western Railroad

BrowN, J. 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 blacks smith for the construction forces of defendant at Camp Ten, near Marion, N. C. Plaintiff and two 'fellow-servants were en'deavoring to hang up a coil pf rope weighing from two to three hundred pounds upon a peg in the tool-house. 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 tbe injury, it was tbe act of a fellow-servant, for wbicli tbe defendant is not liable. According to all tbe evidence, tbe road was being constructed, not operated. "To use á nautical term, tbe “sbip was not in commission.” Tbe plaintiff was employed as a blacksmith, on tbe construction force. While it is not necessary to prove that tbe plaintiff was injured by a fellow-servant while actually on a train or operating it, it must appear, to bring tbe case within tbe railway fellow-servant act, that be was injured while performing a service necessary to or connected with tbe operation of tbe railway as a common carrier. This plaintiff was not performing a service necessary to or connected with tbe use and operation of a railroad. He was tbe blacksmith for a force engaged in constructing bridges, and was hurt while attempting to bang up a coil of rope, twenty miles from tbe then terminus of tbe railroad. Tbe law governing tbe case is so fully stated in tbe opinion of this Court by tbe Chief Justice in Nicholson v. R. R., 138 N. C., 516, that it is unnecessary to further discuss tbe subject. Affirmed.