#### W. J. BROOKSHIRE v. ASHEVILLE ELECTRIC COMPANY.

(Filed 27 May, 1910.)

1. Street Railways — Fellow-servant Act — Interpretation of Statutes.

Tire Fellow-servant Act, Revisal, sec. 2646, applies to street railways, and EempMll v. Lumber Go., 141 N. C., 487, is cited and approved.

2. Negligence — Evidence—Accident—Nonsuit.

While plaintiff was working as a lineman for defendant, he and others were engaged in carrying a pole to the point where it was to be erected, two on the right-hand side of the pole and plaintiff and another on the left-hand side, those on the right being taller than plaintiff and his companion, which threw more weight on the latter. The pole “gave a turn,” those on the right lowered their side of the pole, and those on the left were1 instructed to “come up with the pole,” which plaintiff’s companion did; but plaintiff said, “Let it down, boys; I am hurt”: Held, the evidence tended to prove that the injury resulted from an accident, was insufficient on the question of negligence, and defendant’s motion to nonsuit should have been sustained.

Appeal from Justice,' J., at the March Term, 1910, of BuNCOMBE.

*670Civil action to recover damages for personal injury. Tbe usual issues were submitted and found against tbe defendant. Appeal to tbis Court.

Tbe facts are sufficiently stated in tbe opinion of tbe Court.

Graig, Martin & Thomason for plaintiff.

Martin & Wright for defendant.

Brown, J.

Tbis action was brought to' recover damages from tbe defendant on account of an alleged injury to plaintiff while working for defendant in tbe capacity of lineman, while defendant was engaged in tbe business of operating a street railway and “putting up and taking down telegraph and telephone poles and wires.” -

1. While, possibly, not necessary to a decision of tbis case, yet we deem it proper to say for future guidance that we approve tbe opinion in Hemphill v. Lumber Co., 141 N. C., 487, and regard it as settled in tbis State that tbe Fellow-servant Act, Revisal, sec. 2646, applies to street railways.

2. We are, however, of opinion that there is no sufficient evidence of negligence in tbe record, and that tbe motion to non-suit should have been sustained.

Tbe only witnesses examined were tbe plaintiff and bis brother Jim Brookshire, and their evidence tends to prove that tbe injury to plaintiff was tbe result of an accident that ordinary prescience could not foresee nor ordinary care guard against. They, with four others, were engaged in unloading large poles from a car and placing them in position for use on'defendant’s line. One pole rolled into tbe edge of tbe lake at Riverside Park. In getting it out Williams and Wilson “were toting on l'eft-band side of pole”; plaintiff and King on right-band side, and Jim Brookshire and Reagan were “toting the tip end of tbe pole.” There is no substantial difference in tbe testimony of tbe two witnesses. Jim Brookshire testified that “Tbe pole was lying up along tbe side of tbe lake and we started to ‘tote’ tbe pole up tbe lake, and we all reached down to get it up, and Mr. Wilson and Mr. Williams were so much taller than my brother and Mr. Lon King and that throwed most of tbe weight on them, and tbe pole gave a kind of turn, and let my brother and Mr. Lon King drop down a little and we started off with tbe pole, and Mr. Wilson said, ‘Jeff, come up with tbe pole,’ and Jeff straightened up, and my brother said: ‘Let it down, boys; I am hurt.’ ”

Tbe court below should have sustained tbe motion to nonsuit, and it is so ordered.

Reversed and action dismissed.