#### NICHOLSON v. RAILROAD.

(Filed May 25, 1905.)

Fellow Servant Act — Construction-of—"Operating" Bail-road.

The Fellow Servant Act, (Priv. Laws 1897, Gh. 56), giving any employee of a railroad “operating” in this State, a cause of action for injuries suffered by the negligence of a fellow servant applies to any injury suffered by any employee in any department of work of a railroad which is being operated, but does not apply to an employee engaged in building a trestle for the extension of a railroad, at a point some miles from the track on which trains are being operated.

ActioN by William Nicholson against tbe Transylvania Railroad Company, beard by Judge O. S. Ferguson and a jury, at tbe October Term, 1904, of tbe Superior Court of Jackson County. From a judgment for tbe plaintiff, tbe defendant appealed.

Coleman -C. Cowan for tbe plaintiff.

Geo. A. Shuford; W. A. Gash, Walter E. Moore and Shepherd & Shepherd for tbe defendant.

Clark, C. J.

The evidence tended to show that the plaintiff was injured by the negligence of a fellow servant, and the defendant asked the court to charge that if the jury should find such to be the fact and “should further find from the evidence that the defendant, although a railroad corporation operating a railroad in this State, was not operating a railroad at the point where the plaintiff received bis alleged injury, nor within a nearer distance to said point than five or six miles, and had laid no track at said point nor within said distance from said point, but was engaged in constructing a railroad at said point, and the plaintiff was employed at said time as a construction hand and was engaged in the work of *517building a trestle at said point, and while so engaged was injured by the negligence of said fellow servant, then the plaintiff is not entitled to recover and tbe jury will answer the third issue Mo.’ ” The refusal of this prayer was error.

The “fellow servant act,” unaccountably printed in Private Laws 1897, Chapter, 56, provides “Section 1, that any servant or employee of any railroad company operating in this State, who shall suffer injury to bis person, or the personal representative of any such employee who shall have suffered death, in the course of bis services or employment with said company, by the negligence, carelessness or incompetency of any other servant, employee or agent of the company, or by any defect in the machinery, ways or appliances of the company, shall be entitled to maintain an action against such company,” and section 2 renders nugatory any waiver, express or implied, of the benefit of said act.

The recent origin, and the reason of the rule exempting the master from liability for the negligence of a fellow servant, were first discussed in this court in Hobbs v. Railroad, 107 N. C., 1, and attention was called to the fact that the rule bad been abrogated as to railroad employees by statute in many States. After the passage in this State in 1897 of the above cited statute abolishing the fellow servant doctrine as to railroad employees, the act was fully discussed and it& constitutionality sustained in Hancock v. Railroad, 124 N. C., 222; Coley v. Railroad, 128 N. C., 534, and in the same case on rehearing, 129 N. C., 407, and that ruling has been sustained in all the cases since, and similar statutes in other States have been held not in violation of the Eourteentb Amendment by several decisions of the "United States Supreme Court.

In Mott v. Railroad, 131 N. C., 237, it was sought to curtail and restrict the act so that it should apply only to railroad employees engaged in operating trains, but the court held to the contrary and said “the language of the statute is both comprehensive and explicit. It embraces injuries sus*518tained by (quoting the act) ‘any servant or employee of any railway company * * “ in the course of bis services or employment with said company.’ The plaintiff was an employee and was injured' in the course of his service or employment.” In that case the plaintiff, working in the repair shops, was injured by the negligence of a fellow servant while removing a red-hot tire from an engine, and it was held that he could recover.

The same ruling was repeated in Sigman v. Railroad, 135 N. C., 184, where it is said: “The plaintiff was injured by the negligence of a fellow servant while working upon and repairing a bridge of the defendant railroad. 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." Then after quoting the above extract from Mott v. Railroad, 131 N. C., 237, it is added that to the same effect were “Railroad v. Pontius, 157 U. S., 209, cited since with approval in Tullis v. Railroad, 175 U. S., 352; Railroad v. Harris, 33 Kan., 416; Railroad v. Koehler, 37 Kan., 463; Railroad v. Stahley, 62 Fed. Rep., 363, and many other cases.” To these Ave now add (from among many) the well considered case of Callahan v. Railroad (Mo.), 60 L. R. A., 249, which reviewing the authorities to that time (it was filed December, 1902,) holds with this court that “a statute making a railroad company liable for injuries to servants through the negligence of fellow servants does not violate the equality clause of the Federal Constitution, although it does not confine such liability to acts performed in the operation of trains, but extends it to risks similar to those incurred by the employees of persons or corporations engaged in other lines of work.”

Knowing from the history of the strenuous discussion for and against the passage of the act and from its language as well, that the intention of the legislature was that the doc*519trine of the non-liability of the master for injuries to an employee caused by the negligence of a fellow servant should be abolished as to all employees in railroad service, “whether (as we have said in Sigman v. Railroad, supra,) they are running trains or rendering any other service,” we have no disposition to do other than to affirm fully our rulings already made and cited above. But the act applies only to employees of a “railroad operating,” not that such employees must be operating the trains, but they must be employees in some department of its work, of a railroad which is being operated. Such business is a distinct, well known business, with many risks peculiar to itself and all the employees in such business whether running trains, building or repairing bridges, laying tracks, working in the shops or doing any other work in the service of an “operating railroad,” are classified and exempted from the rule which requires employees to assume the risk of all injuries which may be caused by the negligence of a fellow servant. It is not necessary to show that the plaintiff was injured by a fellow servant while operating a train, but he must “show that he was injured while performing a service necessary to, or connected with, the use and operation of the road.” Railroad v. Vincent, 56 Kan., 344; Stubbs v. Railroad, 85 Mo. App., 192; Thompson v. Railroad, 54 Ga., 509; Railroad v. Ivey, 73 Ga., 504.

Here the railroad was being “constructed,” not “operated.” It .was 5 or 6 miles from the completed track, s'till farther from the track on which trains were being operated. Though it was in the construction of the extension of a railroad, the work was that of building a bridge or trestle and the liabilities of the employer were'the same as those of any one else engaged in bridge building. It does not matter that elsewhere the same employer was “operating” a railroad. It was not doing so at this point. Here it was not a railroad at all. It was constructing, building, what later would be-' come a part of an “operating railroad.”

*520It is true an employee injured by the negligence of a fellow servant while building or repairing a bridge on the line of an operating railroad, under precisely similar circumstances could recover of the railroad company while here he can not. That is because the statute must draw the line somewhere, and the legislature has seen fit to restrict the repeal of the former law to “any servant or employee of any railroad company operating” in this State, which means in the course 'of its “operation” of that business, in any of its departments, but not in the course of its “construction.”

We must read the act as it has been written by the lawmaking power, neither restricting nor extending its effect. Eor the error in refusing this prayer there must be a

New Trial.