On 30 January, 1896, the plaintiff and one Dunn were both in the employ of the defendant — the plaintiff as locomotive engineer on a freight train and Dunn as conductor of a freight train. On that day the plaintiff was operating a train running from Monroe, north to Raleigh, and Dunn was running his train from Raleigh, south. These trains should have passed each other at a station on the defendant's road called Manly, but, by the fault and negligence of Dunn, the plaintiff's train ran into Dunn's train and the plaintiff was badly (494) injured. There were side tracks at Manly, and when plaintiff's train reached that station plaintiff found Dunn's train there, standing on the side track; and, being too long for one side track, it had been divided into two sections, and one of these placed on either side of the main track. Rule 94a of the defendant company required the conductor or flagman of the train first reaching stations where it was necessary to side track for a passing train — that is, made it the duty of Dunn or a flagman — to close the switch of the side track after moving the train off the main line, and when the switch was closed and secured to signal the approaching train on — that is, to give the "all right" signal — and the approaching train passes on without stopping. When the plaintiff reached Manly with his train he found Dunn's train on the side track, Dunn standing at the switch. When Dunn gave him the "all right" signal the plaintiff drove his train forward. But, instead of the switch being closed as it should have been, it was left wide open, *Page 369 and a fearful crash took place, in which the plaintiff was terribly injured and much other damage done. Dunn had only been employed as such conductor three or four weeks.
The plaintiff claims that upon these facts the defendant is liable to him in damages for the injuries he received.
In the first place, the plaintiff denies that he and Dunn were fellow-servants of defendant company, and alleges that Dunn was his vice-principal. Plaintiff also contends that his injuries were caused by reason of a defective roadbed, or track, for which defendant is liable without reference to the question of vice-principal. He also contends that defendant negligently and carelessly employed Dunn as conductor, who is negligent and incompetent to perform the duties of his position, and he was thereby injured. If either of these positions is sustained, the judgment of the court below should be sustained, unless error was committed on trial. (495)
In the catholic sense of the term, the plaintiff and Dunn were fellow-servants. They were both employed by and in the service of defendant company. Wauder v. R. R., 32 Ind. 411; R. R. v. Arnold, 31 Ind. 174;Warner v. R. R., 39 N.Y. 468; Wharton Negligence, sec. 229; Cooley Torts, 543; Randall v. R. R., 109 U.S. 747. The same doctrine is held in Hobbsv. R. R., 107 N.C. 1; Hagins v. R. R., 106 N.C. 537; Webb v. R. R.,97 N.C. 387; Kirk v. R. R., 94 N.C. 625.
In Rittenhouse v. R. R., 120 N.C. 544, it is held that the motorman and a track superintendent in the employ of the same company are fellow-servants.
In Ponton v. R. R., 51 N.C. 245, a case very similar to this, where a switch had been left open by the operators of the train that had sidetracked to let another train pass, and the passing train ran into the train on the side track and injured an employee on the train side-tracked,Ruffin, C. J., delivering the opinion of the court, said that they were fellow-servants and the action could not be maintained. So, to enable the plaintiff to recover upon the first ground assigned, it must not only appear that plaintiff and Dunn were fellow-servants, but it must also appear that Dunn was the vice-principal of the plaintiff. That is, that Dunn was the superior of the plaintiff and had the power to dismiss the plaintiff from his employment. Turner v. Lumber Co., 119 N.C. 387.
Purcell v. R. R., 119 N.C. 728, holds that a conductor on an independent train is the vice-principal as to a brakeman on that train.
Shadd v. R. R., 116 N.C. 968, holds that the conductor is a vice-principal as to those on his train subject to his orders.
It is said in Mason v. R. R., 111 N.C. 482, that the conductor (496) on the train is not a fellow-servant of a person employed in coupling cars. By this statement, which is not necessary to the decision *Page 370 of the case, we understand the court to mean that the conductor in this case was the vice-principal of the person coupling cars.
But none of these cases sustain the plaintiff's contention that Dunn was his vice-principal. They all relate to conductors and the employees on that train who are under and subject to his command. That is not the case here. But to show more clearly that Dunn was not the vice-principal — the superior officer of the plaintiff — we see that the rule referred to (94a) provides that this work — closing the switch and giving the signal "all right" — may be done by Dunn or by a flagman on Dunn's train. Suppose it had been the flagman on Dunn's train that stood by the switch and gave the signal "all right," would it be contended that he was the superior and the vice-principal of the plaintiff? If not, can it be contended that Dunn, doing the work of a flagman, was the plaintiff's vice-principal? The plaintiff must fail on this contention.
The next contention is that the defendant is bound to keep its roadbed in good condition and that this is a duty devolving upon it that cannot be delegated; and the fact that this switch was not closed was a defect in the defendant's roadbed that caused the plaintiff's injury and that the defendant is liable to him in damages on this account. But this contention cannot be maintained. There was no defect in the roadbed. It was sound and in good condition, and was not the cause of the plaintiff's injury. That was the result of the carelessness or the incompetency of Dunn, and the defendant is not liable unless it can be made so through the negligence or incompetency of Dunn. This we have seen he cannot do, unless he was negligently employed by the defendant.
The plaintiff's next contention is that Dunn was negligent and (497) incompetent when employed and that the defendant knew this, or could have known it by the exercise of reasonable care, which was not exercised, in his selection and employment.
There was no evidence that the defendant knew of the incompetency of Dunn when he was employed, except his action on the occasion of this fearful wreck and the fact that he had not been employed in this capacity more than three or four weeks. These facts raise such presumptions against the defendant as to make this an issue unfit to be submitted to the jury under proper instructions from the Court. Lee v. R. R., 87 Michigan, 575;R. R. v. Guyton, 115 Ind. 450; Keith v. R. R., 140 Mass. 175; Bailey Liability for Injury to Servants, pp. 46-56.
The court, among other things, charged the jury as follows, to which the defendant excepted:
1. "That the conductor, Dunn, and the plaintiff, under the evidence, were not fellow-servants."
2. "That Dunn in his duty of managing the switch and giving the signal to plaintiff represented the defendant in the performance of *Page 371 absolute duties which the company owed to the plaintiff, and his negligence, if any, was the negligence of the company and not of a fellow-servant."
3. "That Dunn in his duty of signaling to the plaintiff when the track was clear represented the company in the performance of an absolute duty which the company owed to the plaintiff, and, if he was negligent, it was the negligence of the company and not of a fellow-servant. "
4. "That, it being admitted that the switch was capable of bearing a signal light which would have showed red when the track was unsafe, it was the duty of the company to use such signal light upon the switch."
There was error in these instruction, for which the defendant is entitled to a new trial. (498)
New trial.