BROWN, J., dissenting; WALKER, J., concurring in the dissenting opinion. This is an action for the wrongful death of plaintiff's intestate through the negligence of a fellow-servant. The baggage agent of the defendant left a loaded revolver in a drawer in the desk in the baggage room. It was lying upon some baggage checks, and the baggage agent in removing the pistol from the drawer in order to get the checks, held it in one hand while pulling open another drawer, causing the pistol to fire. It was directed towards the deceased, a fellow-servant in the employ of the defendant, and was discharged, thereby killing him.
The court charged the jury that if they found that the defendant company through its agent left a loaded revolver in said desk where it was necessary to be handled in order to transact the business of the department, and should also find that in moving the pistol from the drawer in the course of his employment said agent took hold of and handled the pistol without the exercise of ordinary care as to the manner in which he was handling it, and carelessly and without the exercise of ordinary care, and without due regard to the direction in which it was pointed, pressed the trigger, and as a result of such careless conduct and want of care the plaintiff's intestate was killed, and the jury should further find that by the exercise of ordinary care the injurious (441) result ought reasonably to have been anticipated as a consequence of such conduct, to find the first issue "Yes"; otherwise, to answer it "No."
In this we find no error of which the defendant can complain. Indeed, in requiring, in addition to the last two circumstances, the jury to find further that there was negligence in leaving the pistol in the drawer, there was error, but of this the defendant cannot complain. It was an immaterial circumstance. *Page 394
If the baggage agent had suddenly and forcibly pulled the drawer open, without observing the fact that another employee was standing close by, and by reason of such negligence and unusual and forcible manner of pulling open the drawer the sharp corner of the drawer had struck the deceased on the temple, killing him, and by the use of ordinary care the agent could reasonably have anticipated such consequence, the defendant would have been liable for the negligence, just as if one employee has negligently thrown a cross-tie or a lump of coal on another, as in Fitzgerald v. R. R.,141 N.C. 531, where the point is thoroughly discussed, or dropping a bar of iron on his foot, Horton v. R. R., 145 N.C. 132, and many similar cases.
The injury was an accident in the sense only that the killing was not intentional. The jury under the last paragraph of the charge must have found that the killing was in consequence of the negligence of the baggage agent from the careless manner in which he held the pistol while pulling open another drawer. He was in the discharge of his duties in the course of his employment. He was negligent, as the jury find, both in the manner of holding the pistol while pointed at another and in pulling open the drawer at the same time. The statute is explicit, that for "injury caused by the negligence, carelessness, or incompetence of a fellow-servant," the defendant is liable. Rev., 2646.
The able and experienced counsel of the defendant do not base their motion for a nonsuit upon the ground that the witness Wall was (442) the agent solely for the Southern Railway, and that the death of the decedent was caused by him when acting solely as agent of the Norfolk and Western, either by exception on the trial or by taking such point in their briefs. But as the suggestion is made, it is well to refer to the testimony of Wall himself, who says: "I was the joint agent of the Norfolk and Western and the Southern Railway companies. Lincoln Moore (the deceased) was employed to help me look after the baggage for the Southern and Norfolk and Western." He also says: "I was assistant baggage agent at the union station at Winston-Salem, and worked in the baggage room." On the motion to nonsuit, the evidence must be taken as true in the aspect most favorable to the plaintiff. According to the evidence above set out, it appears that Wall was the joint agent of the two railroads, and operating the joint baggage room at the union depot in their behalf. That being so, it cannot be said that any one service was done by him at the responsibility of one railroad and the other service at the responsibility of the other. The witness testified that he was the "joint" agent of both roads, operating the "joint" business of both roads. It follows, therefore, that the plaintiff could have sued either or both roads, at her option. It was a joint *Page 395 employment and he was a joint agent. There is no evidence tending to show, and it is unreasonable to suppose, that he was paid according to the trains he served. He was doubtless employed by the month, as is customary, and whatever work he did, according to his testimony, was as joint agent in the joint or common business of the two roads.
A case almost exactly in point is R. R. v. Dorsey,66 Tex. 158[66 Tex. 158]. In that case the plaintiff was employed by one railroad company to act as night watchman in a union yard jointly kept and used by that company and two others. While performing his duty upon a train and track of one of the latter companies, and because of some negligence of that company, he received personal injury, and it was held: "(1) Between the plaintiff and his employer the relation of master and servant existed, by express contract. Between (443) plaintiff and the other companies that relation arose by inference from the service and the connection of the companies.
"(2) No proof being offered as to the contract between the companies, their duties respecting the yard where the plaintiff was injured could only be inferred from the manner in which the premises were used.
"(3) It appearing that the plaintiff was employed to work in the `union yard,' that it was used by the three companies in common, and the plaintiff was injured while performing his duty, it was not error to instruct the jury that if the injury resulted from the negligence of either company, all were liable jointly and severally."
This is a well considered case, and there are many others like it.
In Vary v. R. R., 42 Iowa 246, it did not appear whether the plaintiff was injured on the road of the defendant or of the company by which he was employed. His engagement was to serve both companies very much in the same way as the plaintiff's intestate in this case, and it was held that he could sue either or both, and it was said: "This principle is elementary, and needs no citation of cases in its support." Among other cases to the same purport is Buchanan v. R. R., 75 Iowa 393, in which it is said: "The idea that the employee was under the employment of one company for five minutes, and then another for a few minutes, and another for a short time, and that he changed his employers with the facility with which the kaleidoscope shifts an array of colors involves an absurdity," and adds that this would make the service "not only the ridicule of the public, but a system of deception, to the great peril of the most prudent and careful drivers." Another case is Brow v. R. R., 157 Mass. 399, which held that in such cases where an employee is in a common employment at a union station, rendering service first for one company and then the other, that one injured by the negligence of such servant could recover out of either or all of the companies, though *Page 396 there was no express contract between the companies as to his employment.
(444) If, as Wall testified, he was the joint agent of both companies, they were jointly and severally liable. If, however, as he also testified (and which is not incompatible) he was appointed and paid by the Southern to attend to the joint business for both companies in the baggage room, both companies are liable. Certainly the Southern Railway, which is the one sued here, cannot object that Wall was not in its service when he was handling baggage by its direction for the other company.
Nor are we impressed with the suggestion that a farmer would not be held responsible for the negligence of his servant in a case of this kind, and therefore the railroad should not be. The railroad would not have been liable until the enactment of chapter 56, Laws 1897, now Rev., 2646, which provides: "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 have suffered death in the course of his services or employment with such 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." This statute has been sustained by repeated decisions of this Court, and indeed such statutes have been now almost universally adopted.
This being a motion for a nonsuit, the evidence must be taken as true. The witness testified that he was the joint agent of both railroads, and so was the deceased, who was his helper. The latter was killed "in the course of his services or employment," and the jury found that this was done "by the negligence, carelessness, or incompetence of the other servant." Wall testified that he was appointed and paid by the defendant, the Southern Railway. But he also says that he was the joint agent of both companies, in their joint business of looking after the baggage that came to the union depot.
No error.