Hagins v. Cape Fear & Yadkin Valley Railway Co.

106 N.C. 537

Opinion

Clark, J.:

The complaint alleges that the plaintiff, an employee of the defendant, was injured by the negligence of the engineer in charge of the locomotive. The general rule is well settled that where an employee is injured by the negligence of a fellow-servant — and such was the relation between the plaintiff, a bralceman, and the engineer — the common master is not responsible. It is true that upon allegation and proof that the servant was exposed to unusual and unreasonable risks, or that the master knowing that the servant causing the injury was unfit or incapable, employed or retained in employment such servant, there is an exception to the rule. But there is no such allegation here. The complaint sets out simply that one servant was injured by the negligence of his fellow, without any allegation of facts to take the case out of the application of the law arising on such state of facts. The complaint does not state facts sufficient to constitute a cause of action. x

Action dismissed.