#### J. H. O’NEAL v. SOUTH AND WESTERN RAILROAD COMPANY.

(Filed 27 April, 1910.)

Master and Servant — Fellow-servant Act — Uncompleted Railroad.

One who is injured by the negligent acts of a fellow-servant while working as a blacksmith for a force engaged in building bridges for the construction of a railroad cannot recover of the master, for, to bring his action within the meaning of the fellow-servant act, he must show that he received the injury in performing a required service necessary to or connected with the use and operation of a railroad.

Appeal from Jones, J., at November Term, 1909, of Surry.

Civil action to recover damages for personal injury. A motion in apt time was made to nonsuit the plaintiff, and was sustained. The plaintiff excepted and appealed.

The facts are sufficiently stated in the opinion of the Court.

B. G. Freeman, Folger & Folger and W. F. Garter for plaintiff.

J. Norment Powell and J. J. McLaughlin for defendant.

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 *405plain 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.