#### J. W. TWIDDY v. DARE LUMBER COMPANY.

(Filed 22 February, 1911.)

1. Railroads — Fellow-servant Act — Scope—Interpretation of Statutes.

While the provisions of the Fellow-servant Act, Revisal, sec. 2646, do not extend to a railroad in process of construction before it is operated as a railroad, it does apply, -when the railroads are in operation, to their employees in the course of any department of the work embraced in or incidental to the operation of the road.

2. Same — Lumber Roads.

The provisions of the Fellow-servant Act, Revisal, see. 2646, apply to lumber roads that operate a railroad, and with full force and effect to all their employees in the course of their service in the operation of the railroad, or any department of it.

3. Same.

The provisions of the Fellow-servant Act do not -extend to employees of a lumber company who are not connected with the operation of a railroad of the company.

4. Same — Evidence—Actionable Negligence — Accident.

Plaintiff in the line of his duty was sawing at one end logs for the defendant, at its lumber plant, which logs were to be placed on defendant’s railroad ear by appliances run by steam, known as a “skidder” and a ‘loader.” The other ends of the logs were sawed by other of defendant’s employees, and the negligence complained of was the failure of these other employees to give plaintiff notice that a log, which rolled upon plaintiff, to his injury, was about to do. so. There was no evidence that plaintiff was a part of a train crew or directly engaged in operating the “skidder” or the “loader”: Held,, the Fellow-servant Act, Revisal, sec. 2646, has no application. Semble, the injury resulted from an accident, and there was no actionable negligence shown on the xiart of the defendant.

Appeal from. J. 8. Adams, J., at Fall Term, 1910, of Dake.

Civil action to recover damages for injury caused by alleged negligence on the part of defendant company.

The jury rendered the following verdict:

1. Was plaintiff injured by the negligence of defendant, as alleged ? Answer: Yes.

*2382. Did plaintiff contribute to bis own injury by bis negligence, as alleged in tbe answer? Answer: No.

3. Was tbe defendant injured by tbe negligence of a fellow-servant, as alleged in tbe answer? Answer: ....

4. Wbat damage, if any, is plaintiff entitled to recover? Answer:

Damages up to tbe present time.$1,000

10 years, 200 days to tbe year, $1.00 per day... 2,000

5 years, 200 days to tbe yeai’, .75 per day... 750

5 years, 200 days to tbe year, .50 per day... 500

$4,250

Judgment on tbe verdict for plaintiff, and defendant excepted and appealed.

B. G. Crisp and Winston & Matthews for plaintiff.

Ward & Grimes and D. M. String-field for defendant.

Hose, J.

Tbe evidence tended to sbow tbat defendant, an incorporated lumber company, under its charter and in furtherance of its business was operating a steam railroad, tbe chief purpose being to carry tbe logs from tbe woods to defendant’s mill. Tbat on or about 2 October, 1908, tbe plaintiff, an employee of tbe company, was seriously injured, while engaged in sawing logs in a loading yard of tbe company. Tbat in this part of tbe work the custom was tbat after or as tbe timber was felled in tbe woods, tbe logs were dragged to a convenient position near tbe railroad track by means of a skidder, a stationary machine placed close to tbe track, operated by steam, and in connection with this machine, or as a part of it, there was also a “loader” which picked up tbe logs and placed them on tbe cars after they bad been sawed into proper lengths for tbe purpose. Tbat plaintiff was one of a gang of bands engaged in sawing these logs into tbe lengths required, and at tbe time of tbe injuiy he, with another band, was working on a log with a cross-cut saw and was hurt by tbe log’s rolling around on bis leg and crushing it, tbe log having been cut through at tbe other end by two bands engaged in a like .service. Tbe negligence *239imputed to defendant was tbe failure of tbe employees at tbe other end of tbe log to give plaintiff proper and timely warning tbat tbe log was about to roll, and tbe objection chiefly urged to tbe validity of tbe trial was tbat in determining tbe question of defendant’s responsibility in this aspect of tbe evidence, tbe judge allowed tbe jury to consider tbe ease as affected by our statute in reference to negligence of fellow-servants. This statute, Eevisal, sec. 2646, on matters relevant to tbe present inquiry, provides, “Tbat any servant or employee of any railroad company operating in tbe State, who shall suffer injury to bis person ... in tbe course of bis services or employment with such company by tbe negligence, carelessness, or incompetence of any other servant, employee, or agent of tbe company, etc., . . . shall be entitled to maintain an action against such company.”

Construing this statute, tbe Court has frequently held tbat its force and effect was to abolish, so far as railroads were concerned, tbe doctrine known as tbe fellow-servant doctrine, and make tbe company responsible for tbe negligent acts of its employees in tbe course of their service and employment. Mabry v. R. R., 139 N. C., 388. And we have held further, tbat while tbe act does not extend to a railroad company in process of construction and before operations commence (O’Neal v. R. R., 152 N. C., 404; Nicholson v. R. R., 138 N. C., 516), as to all railroads being operated in tbe State, it applies to their employees in tbe course of any department of tbe work embraced in or incidental to tbe operation of tbe road. Eeferring to this question in Nicholson's case, supra, the Court, among other things, said: “In Mott v. R. R., 131 N. C., 237, it was sought to curtail and restrict tbe act so tbat it should apply only to railroad employees engaged in operating trains, but tbe Court held to tbe contrary, and said, ‘the language of tbe statute is both comprehensive and explicit.’ It embraces injuries sustained by (quoting tbe act) ‘any servant or employee of any railway company ... in tbe course of bis services or employment with said company.’ Tbe plaintiff was an employee and was injured, in tbe course of bis service or employment.” In tbat case tbe plaintiff, working in tbe repair shops, was injured by *240the 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. R. R., 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.”

The Court has also held in many well-approved decisions that these lumber roads, to the extent that they operate a railroad, are and should be considered as railroads, and that the statute in question as construed and applied extends in full force and effect to all employees in the course of their service in the operation of the company’s railroad or any department of it. Thomas v. Lumber Co., 153 N. C., 351; Blackburn v. Lumber Co., 152 N. C., 361; Bissell v. Lumber Co., 152 N. C., 123; Snipes v. Mfg. Co., 152 N. C., 42; Sawyer v. R. R., 145 N. C., 27; Hairston v. Leather Co., 143 N. C., 512; Liles v. Lumber Co., 142 N. C., 39; Hemphill v. Lumber Co., 141 N. C., 487; Simpson v. Lumber Co., 133 N. C., 96; Craft v. Lumber Co., 132 N. C., 156. But this position, though fully established and sustained by these and many other decisions that could be cited, does not extend the effect of the fellow-servant statute to employees of lumber companies, who are in no way connected with the operation of these railroads. The act, in terms, uses the words “railroad companies,” and no other, and may not be applied to employees who are engaged in the lumbering features of the business. In the case before us, as we interpret the testimony, the plaintiff was properly in the lumbering department of the business. So far as the evidence now discloses, he was not a part of the train crew, nor was he directly engaged in operating either the skidder or the loader, and, while he was at the time at work on a loading yard, he was, as stated, engaged in the lumbering features of the work and could, in no proper sense, be considered an employee of a railroad or any department of it. We are of opinion, therefore, that the act in *241question bas no application, and there was error in allowing the jury to determine the question of defendant’s responsibility as in any way affected by it.

While we have specially considered and passed .upon the operation of the fellow-servant act, because that was the exception chiefly discussed before us, we deem it not amiss to say that, on the facts as they now appear, there does not seem to have been an actionable wrong established against the defendant company, but the evidence tends rather to disclose one of those unfortunate but unavoidable accidents which sometimes occur in heavy work of this character and bringing the ease within the principle considered and applied in several recent decisions of the Court, as in Brookshire, case, 152 N. C., 669. For the error indicated, then, defendant is entitled to a new trial, and it is so ordered.

Now trial.