Goodman v. Tallahassee Power Co.

Allen, J. Conceding that the plaintiff and Seaford, the driver of the speeder, were fellow-servants, as the defendant contends, the defense that the defendant is not responsible for an injury caused by the negligence of a fellow-servant cannot avail the defendant if it was operating a railroad at the time of the injury to the plaintiff, within the meaning of section 2646 of the Eevisal, which abolishes the doctrine of fellow-servants as to railroads, and provides that “Any servant or employee of any railroad company operating in this State who shall suffer injury to his person ... by the negligence ... of any other servant, employee, or agent of the company . . . shall be entitled to maintain an action against the company.” The statute was considered in Hemphill v. Lumber Co., 141 N. C., 489, and it was then held that it included logging roads, and the definition given to the term “railroads,” in Schus v. Power Co., 85 Minn., 447, was adopted, as follows: “In Schus v. Powers-Simpson Co., 69 L. R. A., 887; 85 Minn., 447, this point was raised under the Minnesota ‘Fellow-servant Act,’ which is very similar to that in this State, and the Court held that the words, ‘every railroad corporation owning or operating a railroad in this State,’ embraced a ‘logging road’; that though it is not a common carrier of *664 freight and passengers, its employees engaged in the operation of its trains are exposed to the same dangers and risks as are employees of railroads operating as common carriers, and come within the spirit and intent of the act, and that the wider signification of the word ‘railroad,’ meaning any road operated by steam or electricity, on rails, was intended by the Legislature. “Both street railways and logging roads are railroads — i. e., roads whose operations are conducted by the use of rails — and come within the general term, ‘railroads’ — certainly within the meaning of the Fellow-servant Act, which sought to protect all employees engaged in this dangerous avocation, by requiring safe ways, machinery, and appliances, and taking away from such companies the defense that an employee had been injured or killed by the negligence of a fellow-servant.” In the subsequent case of Carter v. R. R., 160 N.C., 10, the principle was affirmed, and the Court then said: “In construing that act (Revisal, sec. 2646) and its similar phraseology, we held that logging roads are railroads, within the meaning of the act, and that the term ‘railroad’ embraced any road operated by steam or electricity, on rails.” The Hemphill case has been approved sixteen times, the latest reference to it being in Buckner v. R. R., 164 N. C., 204; McDonald v. R. R., 165 N. C., 625; Bloxham v. Timber Co., 172 N. C., 46, and we are not inclined to disturb it, as roads “operated by steam or electricity, on rails,” come within the language of the statute, and they are within its spirit, which is to protect employees engaged in a dangerous service. Indeed, the employees of railroads which are not public-service corporations are frequently subjected to greater danger because of defective appliances and the absence of supervision by officers of the State. The evidence clearly brings the defendant within the principle, as it shows that the road operated by the defendant was standard-gauge, had heavy rails, and that a locomotive hauled trains over it, carrying all kinds of heavy material. It follows, therefore, if the plaintiff and Seaford were fellow-servants, there was no prejudicial error in the instruction to the jury, as the defendant, being a railroad, operating in this State, could not have the benefit of the defense that the plaintiff was injured by the negligence of a fellow-servant. The case of Twiddy v. L. Co., 154 N. C., 237, has no application to the case before us. In that case the plaintiff was in a separate department and had no connection with the operation of the road, while in the present case the plaintiff and Seaford were together, operating the speeder, the plaintiff giving directions and Seaford driving it. "We therefore conclude, there is no reversible error in the charge. *665 There is also an exception to evidence, which we have considered, and find without merit. There is no substantial difference between the answer of the witness to the questions objected to on reexamination and his testimony on cross-examination. No error.