#### MAYNARD HOWELL v. SOUTHERN RAILWAY COMPANY.

(Filed 12 October, 1910.)

Evidence — Accident—Nonsuit.

Tliis case, wherein plaintiff was injured by a railroad rail dropping on his foot while he was carrying rails in defendant’s employment, is governed by Broolcshire v. Electric Oo., 152 N. C., 669, and a judgment as of nonsuit upon the evidence should have been granted.

Appeal from 0. II. Allen, J., at tbe May Term, 1910, of JOHNSTON.

Civil action to recover damages for alleged negligence. Tbe defendant in apt time made motion to nonsuit, wbicb was overruled. Defendant excepted and appealed.

There was a verdict and judgment for plaintiff, and defendant appealed.

J. A. Wellons, Aycock & Winston for plaintiff.

Abell & Ward for defendant.

Per Ctfeiam.

Tbe evidence, taken in its most favorable view for tbe plaintiff, tends to prove tbat plaintiff and three other employees of defendant, Worley, Eaucett and Stevens, were sent by tbe section foreman after a guard rail. No tools were given or requested and there is no evidence tbat such tools are in general use. Plaintiff states tbat tbe usual method of carrying rails is with tbe bands.

On way back with tbe rail Eaucett and Stevens carried one end, Worley and plaintiff tbe other end. Tbe end carried by Eaucett and Stevens was dropped and tbat j'erked tbe other end and it fell on plaintiff’s foot.

In Brookshire v. Electric Co., 152 N. C., 669 (a defendant to wbicb tbe fellow servant act, Revisal, sec. 2646, is applicable) we have a ease on all fours with this, in wbicb we held tbe casualty to be tbe result of an accident and no evidence of negligence.

In operations of this character such accidents are not uncommon and are difficult to guard against.

*185The Superior Court should have sustained the motion to non-suit and dismissed the action. It is so ordered.

Reversed.