Mabry v. North Carolina R. Co.

• Decision Date: 31 October 1905
• Citation: 52 S.E. 124,139 N.C. 388
• Parties: MABRY v. NORTH CAROLINA R. CO.
• Court: North Carolina Supreme Court

52 S.E. 124

139 N.C. 388

MABRY v. NORTH CAROLINA R. CO.

Supreme Court of North Carolina

October 31, 1905

Appeal from Superior Court, Guilford County; Peebles, Judge.

Action by J. C. Mabry against the North Carolina Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Civil action to recover damages for personal injuries caused by alleged negligence of the Southern Railway Company. The ordinary issues in actions for negligence were submitted. There was evidence of plaintiff tending to show that plaintiff, an employé of the Southern Railway Company operating the defendant's road under a lease, while in discharge of his duty as such employé, was seriously injured by the negligence of two fellow servants, also in service of the same company, and so engaged at the time. There was evidence of defendant adverse to the claim of plaintiff. Verdict and judgment for plaintiff, and defendant excepted and appealed.

King & Kimball, for appellant.

Stedman & Cooke, for appellee.

HOKE J.

It has been settled by repeated and well-considered decisions of this court that defendant company is responsible for actionable negligence of the Southern Railway Company done in the operation of the road under defendant's lease and in the exercise of its franchise. Aycock v. Railroad, 89 N.C. 321; Logan v. Railroad, 116 N.C. 940, 21 S.E. 959; Harden v. Railroad, 129 N.C. 354, 40 S.E 184. The statute (Priv. Laws 1897, p. 83, c. 56, § 1 enacts "That any servant or employee of any railroad company operating in this state, who shall suffer injury to his person, or the personal representative of any such servant or employee who shall suffer death, in the course of his service or employment with said company, by the negligence carelessness or incompetency of any other servant, employee or agent of the company, or by any defect in the machinery ways or appliances of the company, shall be entitled to maintain an action against such company." One effect of this statute is to abolish, so far as railroads are concerned, the doctrine known as the "fellow servant doctrine," and make the company responsible for the negligent acts of its employés in the course of their service or employment, when by reason of such negligence a fellow servant or other employé is injured. We have carefully examined the record and the exceptions presented for our consideration, and find no reversible error in the charge of the court or the...