Wright v. Northampton & H. R. Co

• Decision Date: 01 March 1898
• Citation: 29 S.E. 100,122 N.C. 852
• Court: North Carolina Supreme Court
• Parties: WRIGHT . v. NORTHAMPTON & H. R. CO.

29 S.E. 100

122 N.C. 852

WRIGHT .

v.NORTHAMPTON & H. R. CO.

Supreme Court of North Carolina.

March 1, 1898.

Master and Servant—Fellow Servants—Carriers or Passengers—Action for Personal Injuries—Instructions.

1. An engineer who acts also as conductor of the train and a section master are fellow servants.

2. Plaintiff, a section master in defendant's employ, after his work was over went to his sleeping place on a hand car or on defendant's train, as suited his convenience. Held, that in going from his work on the train he was not a passenger, though not actually engaged in the work for which he was employed.

Douglas, J., dissenting.

Appeal from superior court, Northampton county; Bryan, Judge.

Action by J. W. Wright, Jr., against the Northampton & Hartford Railroad Company for personal injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Reversed.

MacRae & Day and W. W. Peebles & Son, for appellant.

R. B. Peebles, for appellee.

MONTGOMERY, J. This action was commenced on the 1st day of March, 1895, and the plaintiff's object was to recover of the defendant company damages for injuries which the plaintiff alleged he had sustained on account of the negligence of the defendant. Whether or not the plaintiff and the engineer (Lester) of the defendant company were fellow servants when the plaintiff was injured is the question raised by the defendant's exceptions to his honor's instructions to the jury on that point. The third issue submitted to the jury was in the following words: "Was the plaintiff injured by the negligence of a fellow servant? If so, which one?" The jury in response answered, "No." Upon that issue the court instructed the jury that if the train on which the plaintiff was riding at the time he was injured was under control of Lester, he acting both as engineer and conductor, then the plaintiff and Lester were not fellow servants, and the jury should answer the third issue, "No." There was error in that instruction. That Lester was engineer and conductor did not constitute him a vice principal as to the plaintiff. A section master's duties have no connection whatever with the train service, and for the performance of his duties he is not responsible to the conductors of trains. A conductor stands in the relation of vice principal only to such employes of the common master as have employment on his own train, and who are under his orders and subject to his command. Shadd v. Railroad Co., 11G N. C. 968, 21 S. E. 554; Pleasants v. Railroad Co., 121 N. C. 492, 28 S. E. 267. His honor further instructed the jury that If they believed the evidence they should answer the first issue, "Yes." That issue was in these words: "Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint?" The complaint alleged that the plaintiff was a passenger on the defendant's train, and not an employe, and also that the general manager, who was also superintendent, was present at the time the plaintiff was injured, and gave the order to the engineer which resulted in the plaintiff's injury. His honor erred in giving this instruction. In reference to the conduct of the superintendent and general manager, Kell, the plaintiff testified that that officer was on the engine, and, upon being informed by the engineer that the headlight was out, and asked by the superior whether he should go ahead, answered, "Yes; go ahead." Kell, In his testimony, said that he never spoke to the engineer on the subject, nor did he give him any orders...