dissenting from the opinion of the Court: The foregoing substantial statement of all the material testimony will suffice to present the plaintiff’s case in its entirety, and at its best. I am thoroughly aware of the oft-repeated rule that, on a motion to nonsuit, evidence should be construed in the most favorable light for the plaintiff (Brittain v. Westhall, 135 N. C., 492; In re Will of Margaret Deyton, 177 N. C., 503; Angel v. Spruce Co., 178 N. C., 621; Spry v. Kiser, 179 N. C., 417), and I will so deal with it. After doing so, I can find no evidence in the case upon which the plaintiff can ask for a verdict, as, in my judgment, there is nothing that shows any negligence 'on the part of either defendant.
The first assignment of error is the nonsuiting of plaintiff as to the Carolina Timber Company; and defendants contend there is no evidence against the Carolina Timber Company. The plaintiff offered in evidence a deed for the mill plant to the Carolina Timber Company, but did not see fit to offer any further evidence from the records or from witnesses who knew the relations between the Carolina Timber Company and the Camp Manufacturing Company.
It is clear from the testimony that Henry Peterson and John Souther-land, who started up the engine, were fellow-servants of the plaintiff, and their act was the proximate cause of the injury.
The recognized rule in England, which generally prevails in this country, and affirmed by this Court, is declared to be: That the term fellow-servant includes all who serve the same master — work under the same control — derive authority and compensation from the same source, and are engaged in the same general business, though it may be in different grades and departments of it. Kirk v. R. R., 94 N. C., 625; Rittenhouse v. R. R., 120 N. C., 544; Olmstead v. Raleigh, 130 N. C., *213243; Hobbs v. R. R., 107 N. C., 1. There is no evidence showing that the place Yas unsafe; that the machinery was defective; that the employees were incompetent, or that there was any other failure in the duty which the defendants owed to the plaintiff.
The statute denying the fellow-servant rule as a defense to railroad companies cannot apply in any event in this case. Defendant asserts that the effort of the plaintiff to make the Carolina Timber Company a defendant grows out of plaintiff’s purpose to show the ownership of the railroad, and thereby forbid to the defendant, Carolina Timber Company, protection of the fellow-servant rule, and- it is argued by defendants’ counsel that the fact that the plaintiff is so persistent in the prosecution of the timber company, shows that he is convinced that the party causing the injury was a fellow-servant. It may be conceded that a lumber company, operating a logging road, comes under the provisions of this act if the injury occurs in the railroad operations. Hemphill v. Lumber Co., 141 N. C., 487; Bissell v. Lumber Co., 152 N. C., 123; Wright v. R. R., 151 N. C., 529; Bird v. Leather Co., 143 N. C., 283; Liles v. Lumber Co., 142 N. C., 39. The Fellow-servant Act applies to all employees of a railroad company, whether working in the transportation or other departments. Sigman v. R. R., 135 N. C., 101. But, as to lumber companies and other companies operating railroads, the act only applies when the party injured is operating in the transportation department. Twiddy v. Lumber Co., 154 N. C., 237, approved in Buchanan v. Furnace Co., 178 N. C., 647.
The fourth assignment is based upon the assumption that it was negligent not to have a .whistle on the dust engine, when there was one on the large mill, the defendants contending that there is no evidence whatever that a whistle was necessary on the dust engine. This assignment of error is so vague that it is difficult to discuss it with reference to the testimony. The only reference to this matter appears on pages 30 and 31 of the testimony, as follows: “When the machinery connected up with the big engine was going to be started up, after being stopped, they had a system of blowing whistles before they started it. They had no such system of signals in regard to the dust engine and machinery connected with it. . . . They could have installed a system of whistles for the dust-chain machinery. Just had a smaller whistle than the one that started the big engine; run a wire across and tack onto the boiler and pull it, or have a wire to the engine, either one — just small, the same way they had of starting the big engine upstairs.” All that this means is that the sawmill proper had a whistle and blew it when the mill wras about to be started, and that the dust engine, which was a *214subsidiary piece of machinery or equipment for the purpose of regulating the sawdust by discharging it into the furnace, did not, have such a whistle. It might have been said with equal truth that there was no such whistle attached to the pump-engine or any other subsidiary machinery which was operated from time to time when needed. There was no evidence that such a whistle was in customary use or was necessary as a means of safety, and before the plaintiff can establish this as negligence he would have to show that such equipment was an up-to-date equipment in general use, and that the defendant had negligently failed to put it into use here.
But the important and vital question to be considered is, whether there is any evidence, when it is favorably construed for the plaintiff, which justifies us in reversing the studied and deliberate ruling of the court below and ordering that the case must be submitted to the jury.
This is not a case where the owner of the mill, and its machinery, had appointed some one as vice-principal, or his representative, to supervise the operation of the same, who was guilty of negligence causing the injury, which will be implied to his principal. The facts, while there was very much evidence in the case, are few and simple.
The plaintiff, Leon Cook, himself either stopped the machinery or gave the order to stop it, so that he might go in and repair the pilot chain and remove any obstruction which hindered the effective operation of the machinery, such as the lightwood knot in the chain at the lower sprocket. The plaintiff (as he himself alleges), “in the performance of his duty, got astride of said chain, which, being idle at the time, was slack, and with the assistance of a helper, removed the obstruction; and at the time the plaintiff was in the act of stepping clear of the dust chain, the defendant negligently started the dust engine, and plaintiff was caught therein and injured.” But who directly and negligently caused the injury ? It was not the defendants, but the fellow-servant of the plaintiff who received the request from him not to sta»t the machinery until he came back, or in other words, the fireman and his helper. We have shown that they were the plaintiff’s fellow-servants by the highest authority (Kirk v. R. R., supra), a ease decided thirty-five years ago, and which has been frequently cited and approved since that time. That case is identical, in principle, with this one. The engineer, Harris, was ordered not to move his switch engine until work, or inspection required to be done underneath the cars, was finished, and he was notified of the fact by the yardmaster. In spite of this order, the engineer did move the train before the work was completed and the plaintiff’s arm was cut off. The railroad company was acquitted of all liability by this Court, and owing to the contrary ruling below, there was *215a new trial. Tbe yardmaster and tbe engineer represented tbe railroad company as mucb in that case, as did tbe fireman and helper in tbis one, and yet it was beld that there was no liability because tbe plaintiff and those two men were fellow-servants. Tbe fellow-servant law, as to railroad companies, has been repealed since that case was decided, but tbe principle it established is as firmly entrenched as ever, and is applicable wherever tbe doctrine of fellow-servant is still applicable.
Tbe employer, in tbis case, could not have supplied anything, whistle or what not, which would have been more effective than tbe means then at band to avert tbe injury. If there bad been a whistle, or tbe most approved contrivance in that respect, tbe result would have been tbe same, if tbe fireman bad been negligent, as be was here, and failed to blow it, and give tbe proper warning to Cook to get out. Tbe question is not whether there was a whistle, but whether tbe means available at tbe time were sufficient to prevent tbe resultant injury. If tbe direction bad not been given to start tbe engine tbe plaintiff would have escaped without any barm being done to him, there being ample means at band to prevent it. Tbe parties at tbe mill were abundantly able to save tbe plaintiff from any injury, and be would not have been hurt if it bad not been for tbe negligence of bis fellow-servant who started tbe machinery, or caused it to be started. Leon Cook bad finished bis work and was in tbe act of' leaving tbe place, when tbe machinery was put in motion. Tbe mistake was made by tbe fireman, or bis helper, in supposing that Cook bad already left and was in no danger, and tbis mistake would still have been made bad every piece of machinery been supplied with a whistle. What caused tbe injury was not tbe want of a whistle, but tbe reliance of tbe fireman, or helper, upon bis own mere supposition, to which be carelessly trusted, that Cook bad left tbe place of danger, instead of having certain knowledge that be bad left before giving tbe order to start tbe machinery. •
Tbe fellow-servant doctrine has no force or effect if it does not apply to tbis ease, and tbe fireman and bis helper were surely fellow-servants of Cook within tbe rule stated in Kirk v. R. R., supra.
Finally, tbe situation could not have been saved by anything tbe employer could have done. There is no suggestion that tbe fireman or helper was of a careless habit and known by tbe employer to be so. It was just tbe false reliance of tbe fireman or bis helper upon mere supposition as to where Cook was, instead of upon actual knowledge, and tbe result would have been tbe same if there bad been a whistle on tbe smaller engine, as tbe fireman and bis helper would still have acted upon tbe same supposition, for they were told not to start tbe machinery, *216in any event, until Cook returned, or, to use bis words, until be came back. In tbe Kirk case, supra, the engine bad not only a whistle but also a bell to give signals, by a blast of tbe one or tbe ringing of tbe other, and tbe engineer used neither, but violated instructions by moving tbe train. That case and this one are clearly analogous, as there be moved tbe train without receiving notice from tbe yard master, while here tbe fireman and bis helper started tbe machinery without notice from Cook, the plaintiff, and caused tbe injury.
No one questions the principle that tbe master must furnish a reasonably safe place for tbe servant to do bis work (Marks v. Cotton Mills, 135 N. C., 287), and that this is a primary duty devolving upon tbe master which be cannot without liability therefor delegate to another. But that question does not arise here, as plaintiff himself undertook to do tbe work and to provide for bis own safety, in bis own way. He trusted too much to tbe fireman and helper, and is himself solely responsible, in law, for tbe consequences. Of course tbe timber company cannot be liable unless the Camp Manufacturing Company is liable. But there is nothing to charge it with liability, either upon the evidence or under tbe principle laid down in Logan v. R. R., 116 N. C., 940, and cases citing it, which will be found in the annotated edition of 116 N. C., marginal page 940, at pp. 952-953, and in Shepard’s N. C. Citations (1 ed.), at p. 172, and issue of June, 1921 (Advance Sheets), p. 46.
It further appears that the Logan case, supra, does not apply here, as it was distinctly put upon the ground that the North Carolina Railroad Company was a quasi-public corporation, and could not, therefore, lease its road and discharge itself from liability for neglect of the duties it owed to the public. It exercised, at least in a quasi-sense, a public franchise, granted to it by the State in its sovereign capacity, and could not disable itself to perform its public duties by a lease without responsibility for injuries to others caused by the negligence of the lessor in operating the road. *
My conclusion is that the nonsuit was proper, and that the judgment should be
Affirmed.