#### OLMSTEAD v. CITY OF RALEIGH.

(Filed April 29, 1902.)

1. PLEADINGS — Reply—New Cause of Action■ — The Code, Sec. 848.

A reply can lie made only to new matter brought out in the answer.

2. MASTER AND SERVANT — Fellow-servant-—Neyligence—Per-sonan Injuries.

A person employed by a city to do mason work and one to do carpenter work, engaged in their respective departments, are fellow-servants.

ActioN by A. E. Olmstead against tbe City of Raleigb, beard by Judge W. S. 0JB. Robinson and a jury, at February Term, 1902, o-f tbe Superior Court of Ware County. Erom a judgment for tbe defendant, tbe plaintiff appealed.

J. C. L. Harris, and Douglas & Simms, for tbe plaintiff.

W. L. Watson, and J. N. Holding, for tbe defendant.

MONTGOMERY, J.

Tbe defendant, tbe city of Raleigb, purchased a tract of land near tbe city to be used for sanitary purposes, and also for tbe site of a smallpox hospital. To further utilize tbe property, tbe defendant determined to build a large bam upon it, in which its horses were to be stabled and its crops, grown upon tbe same to feed its stock, were to be stored; and, to superintend tbe farm, a man of the name of Leighton was employed by tbe year. Tbe plaintiff was employed through tbe sanitary officer of tbe defendant, by tbe day, to superintend tbe building of tbe woodwork or carpenter’s work on tbe bam, and Leighton was instructed by tbe same officer to do tbe rock-work — tbe underpinning. Tbe plaintiff raised tbe barn, using temporary braces nailed at one end to tbe upright pieces, and at tbe other end to tbe foundation sills, tbe end of tbe braces projecting a little over *244the sills. Leighton, described as a rock mason, in the complaint, while engaged in doing, the underpinning, knocked off these temporary braces from the sills, thereby causing the building to collapse, and in its fall the plaintiff was' injured.

This action was brought to recover damages for the injuries sustained, and in the complaint the negligent and careless knocking off of the temporary braces was alleged to be the direct and immediate cause of the fall of the building, and the proximate cause of the injury to the plaintiff.

In the answer, the defendant averred that these braces were in the way of Leighton, and were knocked off by him and the carpenters in the proper discharge of their duty.

The plaintiff replied and added another cause of action, in which it was declared that Leighton was incompetent to do his work. But that cause of action could not be engrafted on the case by the reply, for the reason that the answer contained nothing about the competency of Leighton as a rock mason. A reply can only be made to new matter brought out in the answer. Code, Sec. 248. If the reply could be made to add a new cause of action, it would not help the plaintiff, as he introduced no evidence that the defendant knew of his incompetency. Hagins v. Railroad, 106 N. C., 538; Boyette v. Vaughan,, 85 N. C., 363. So the case is before us on the cause of action set out in the complaint. Upon the evidence of the plaintiff, the action was dismissed and judgment entered as of nonsuit.

The defendant’s counsel, in their brief, argued that the judgment should be sustained, first, on the ground that the plaintiff contributed to his own injury by his negligence; second, that the defendant can not be held liable for any negligence on the part of the officers of itp Health Department; and third, that the plaintiff and Leighton were fellow-servants of the defendant. In the evidence we saw nothing going to show contributory negligence on the part of the plaintiff. The work in which the plaintiff was engaged was work purely *245for the benefit of the city in its municipal and business interest. The contract with the sanitary arrangements of the city was only incidental to that denartment, as it was not concerning the public health, but concerning the protection of the city’s property and the storage of the produce of the farm.

But we think the plaintiff and Leighton were fellow-servants of the city. The different department limitations is not recognized in this State. In Kirk v. Railroad, 94 N. C., 625, 55 Am.. Rep., 621, the Court adopted the recognized rule in England and generally prevailing in this country, “that the term 'fellow-servant’ includes all who serve the same master, work under the same control, derive authority and compensation from the same source, and are engaged in the same general business, though it may be in different grades and departments of it.” In that case, the plaintiff was a carpenter sent out by the defendant to inspect cars and report upon their condition for immediate use. An assistant yardmaster gave a premature order to the engineer, who thereupon moved his engine and caused the car under which the plaintiff was inspecting to crush his arm — no notice having hern given him of what was about to be done, and he not seeing or hearing of the approach of the engine until the impact took place. In Keith v. Iron and Coal Co., 81 Ga., 49, 12 Am. St. Rep., 296, a carpenter was killed by the fall of masonry which was defective, the two workmen being co-employees of the defendant and co-operating in their respective departments of labor for the erection and completion of a magazine for the storage of defendant’s ammunition for use in blasting, were held to be fellow-servants; and in Dier v. Railroad, 132 Ind., 78, the same doctrine was held — the two co-laborers being one a carpenter and the other a stone-mason, who were engaged in their respective departments in the building of a bridge.

No Error.