Opinion
(Filed 12 October, 1910.)
Evidence — Accident — Nonsuit. This case, wherein plaintiff was injured by a railroad rail dropping on his foot while he was carrying rails in defendant's employment, is governed by Brookshire v. Electric Co., 152 N.C. 669, and a judgment as of nonsuit upon the evidence should have been granted.
APPEAL from O. H. Allen, J., at May Term, 1910, of JOHNSTON.
Action to recover damages for alleged negligence. The defendant in apt time made motion to nonsuit, which was overruled. Defendant excepted and appealed.
J. A. Wellons and Aycock Winston for plaintiff.
Abell Ward for defendant.
The evidence, taken in its most favorable view for the plaintiff, tends to prove that plaintiff and three other employees of defendant, Worley, Faucett and Stevens, were sent by the section foreman after a guard rail. No tools were given or requested and there is no evidence that such tools are in general use. Plaintiff states that the usual method of carrying rails is with the hands.
On way back with the rail Faucett and Stevens carried one end, Worley and plaintiff the other end. The end carried by Faucett and Stevens was dropped and that jerked the other end and it fell on plaintiff's foot.
In Brookshire v. Electric Co., 152 N.C. 669 (a defendant to which the fellow servant act, Revisal, sec. 2646, is applicable) we have a case on all fours with this, in which we held the casualty to be the result of an accident and no evidence of negligence.
In operations of this character such accidents are not uncommon and are difficult to guard against.
The court should have sustained the motion to nonsuit and (185) dismissed the action.
Reversed.