Midgett v. Branning Manufacturing Co.

103 S.E. 895, 180 N.C. 24, 1920 N.C. LEXIS 8

• Court: Supreme Court of North Carolina
• Decided: September 15, 1920
• Status: Published

Opinion

Clare, C. J.

The evidence for plaintiff was that the skidder started up without any warning. The evidence for the defendant was that the skidder started up without orders from the foreman, and upon the signal from another employee, who got notice from still another employee, who received notice from the plaintiff. On this conflict of evidence the motion for nonsuit was properly refused.

The defendant further insists that this injury was an accident, and if not, that it was caused by the negligence of a fellow-servant, for which the defendant is not responsible. The plaintiff was obeying the orders of his superior, the foreman, and the vice principal of the company, who was present at the time and directing the work.

It is true that the fellow-servant act, Eev., 2646, applies to the operation of- logging roads. Liles v. Lumber Co., 142 N. C., 49; Bissell v. Lumber Co., 152 N. C., 123; Bloxham v. Timber Corp., 172 N. C., 37. This does not extend to the operation of the skidder by other than the train crew, and if used only for the purpose for drawing logs out of woods to be loaded upon the cars. Twiddy v. Lumber Co., 154 N. C., 237. In Jackson v. Lumber Co., 158 N. C., 317, it was intimated that the operation of the skidder to draw the logs out of the woods was not a part of the operation of the railroad company, but that the use of the loading machine to lift them on the cars was.

In this case the plaintiff was injured by the negligence of the skidder, as the jury found, but if the fellow-servant act does not apply, the defendant was liable for negligence of its vice principal, who was directing the work, and under whose orders the plaintiff was acting. “In such a ease, the negligence is imputed to the principal, and a prayer for instruction was properly refused, to the effect that if the plaintiff was injured, under sucb circumstances, by tbe misconduct of a co-employee be could not recover.” For if tbe negligence of tbe employer and a fellow-servant concurs in producing tbe injury, tbe injured employee can recover from either if be himself is free from blame. Wade v. Contracting Co., 149 N. C., 180, citing 12 A. and E. (2 ed.), 905; Beck v. Tanning Co., 179 N. C., 126.

No error.