Opinion
(Filed 29 April, 1902.)
1. Pleadings — Reply — New Cause of Action — The Code, Sec. 248.
A reply can be made only to new matter brought out in the answer.
2. Master and Servant — Fellow-servant — Negligence — Personal Injuries.
A person employed by a city to do mason work and one to do carpenter work, engaged in their respective departments, are fellow-servants.
ACTION by A. E. Olmstead against the city of Raleigh, heard by Robinson, J., and a jury, at February Term, 1902, of WAKE. From a judgment for the defendant, the plaintiff appealed.
J. C. L. Harris and Douglass Simms for plaintiff.
W. L. Watson and J. N. Holding for defendant.
The defendant, the city of Raleigh, purchased a tract of land near the city to be used for sanitary purposes, and also for the site of a smallpox hospital. To further utilize the property, the defendant determined to build a large barn upon it, in which its horses were to be stabled and its crops, grown upon the same to feed its stock, were to be stored; and, to superintend the farm, a man of the name of Leighton was employed by the year. The plaintiff was employed through the sanitary officer of the defendant, by the day, to superintend the building of the woodwork or carpenter's work on the barn, and Leighton was instructed by the same officer to do the rockwork — the underpinning. The plaintiff raised the barn, using temporary braces nailed at one end to the upright pieces, and at the other end to the foundation sills, the end of the braces projecting a little over the sills. Leighton, described as a rock mason in the complaint, while engaged in doing the underpinning, knocked off (244) these temporary braces from the sills, thereby causing the building to collapse, and in its fall the plaintiff was injured.
This action was brought to recover damages for the injuries sustained, and in the complaint the negligent and careless knocking off of the temporary braces was alleged to be the direct and immediate cause of the fall of the building, and the proximate cause of the injury to the plaintiff.
In the answer the defendant averred that these braces were in the way of Leighton, and were knocked off by him and the carpenters in the proper discharge of their duty.
The plaintiff replied and added another cause of action, in which it was declared that Leighton was incompetent to do his work. But that cause of action could not be engrafted on the case by the reply, for the reason that the answer contained nothing about the competency of Leighton as a rock mason. A reply can only be made to new matter brought out in the answer. Code, sec. 248. If the reply could be made to add a new cause of action, it would not help the plaintiff, as he introduced no evidence that the defendant knew of his incompetency. Hagins v. R. R., 106 N.C. 538; Boyette v. Vaughan, 85 N.C. 363. So the case is before us on the cause of action set out in the complaint. Upon the evidence of the plaintiff, the action was dismissed and judgment entered as of nonsuit.
The defendant's counsel, in their brief, argued that the judgment should be sustained, first, on the ground that the plaintiff contributed to his own injury by his negligence; second, that the defendant can not be held liable for any negligence on the part of the officers of its health department; and, third, that the plaintiff and Leighton were fellow-servants of the defendant. In the evidence we saw nothing going to show contributory negligence on the part of the plaintiff. The work in which the plaintiff was engaged was work purely for the benefit of the city in its municipal and business interest. The (245) contract with the sanitary arrangements of the city was only incidental to that department, as it was not concerning the public health, but concerning the protection of the city's property and the storage of the produce of the farm.
But we think the plaintiff and Leighton were fellow-servants of the city. The different department limitations is not recognized in this State. In Kirk v. R. R., 94 N.C. 625, 55 Am. Rep., 621, the Court adopted the recognized rule in England and generally prevailing in this country, "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." In that case the plaintiff was a carpenter sent out by the defendant to inspect cars and report upon their condition for immediate use. An assistant yardmaster gave a premature order to the engineer, who thereupon moved his engine and caused the car under which the plaintiff was inspecting to crush his arm — no notice having been given him of what was about to be done, and he not seeing or hearing of the approach of the engine until the impact took place. In Keith v. Iron and Coal Co., 81 Ga. 49, 12 Am. St., 296, a carpenter was killed by the fall of masonry which was defective, the two workmen being coemployees of the defendant and cooperating in their respective departments of labor for the erection and completion of a magazine for the storage of defendant's ammunition for use in blasting, were held to be fellow-servants; and in Dier v. R. R., 132 Ind. 78, the same doctrine was held — the two colaborers being, one a carpenter and the other a stonemason, who were engaged in their respective departments in the building of a bridge.
No error.
(246)