The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1897-02-18

To the Editor: / have watched with
% much interest the PrpgressTQf t4e)leg4sla.
tion to repeal, The, rule of law establish
ed BY judicial decisions, known as the
"Fellow Servant rule. .,.,,., g
camp hope the bill, now pending before
the Senate to abolish the rule, will be
& enacted into law by the General Assem-
bly,. In the case of Hobbs VS. the At
~iallt.c and North Carolina Railroad, lOf
N.aGT Report RsGge d referred TO IN your
editorial of this date, !, / was counsel
for the plaintiff, and my attention was
81, att that. time 1880 directed TO the hard.
! ship and injustice, which the rule FREE
81 auently works to employees. of railroads.
a, In Hobbs case the frem9ns who was
ala BOTH by virtue of his position and the
al rules of the company subordinate to and
- under the control of bhe engineer, was
ordered by the engineer negigenty to-
go out upon the engine and Oil certain
: 3. machinery while the engine was IN swift
-Asmotion, and was placed by the engineer
win a position of extreme hazard ana Dan
CERT fflereuponS without warning the
.Albrakes we're signalled,, the train negli-
" gently stopped without warning, and the
-sge firemam was thrown fheaalong from the
-es engine and injured for life. ,vG
hsa Had the. fireman declined to- obey the
a. engineers commands BY he RULES
OF THE COMPANY HE WAS LIA-i
BILE no DISCHARGE He must obey
~ his superior. and YET NOTWIIHS
IS STANDING THE GROSS eNENiI-.
GENGEl OF THAT SUPERIOR,
ss,r WHOM HHsWAS.FORCEDgT TO OBEY
81 BY HIS COMPANIES RULES, UNI
s4.ra DER THE FELTON, SERVANT
RULE. HE HADaN0 CAUSE OF &C
81. TI0N.,AGAINST THAT COMPANY
-saz WHICH MADE. THE RULE AND
sea. PLACED THE ENGINEER OVER
-xa HIM AS A. SUPERIOR. Following
~ the long line Of decisions adopting and
.agI faroring the rule, our Supreme court IN
-ra Hobbs lease held the decision OF Judge
s0sa Ar1nfieIi in the court below, oyerrullng
the defendant company's demurrer, TO
~ he sssEryor. y, and outlines fully the law
of the liability of railroads for the in
49, Jury OF fellow servants inathe full and
ia.-a exhaustive opinion of Justice Clark. M
ds.ssz In the opinion Judge Clark says, 1T
is frequently urged that, as to railroads,
d. there should be an exception made to the
esa. general rule of non-liability of the mas
a. ter. But. whatever may be argued IN
favor of or against the propriety of such
3 exception. the rule Is so well settled that
4 the courts have not felt authorized TO
make it. wee l
The change wherever it has been
ss made, has come by legislative enact
lnent.n-
AND IN THAT WAY TT MUST
COME IN NORTH CAROLINA, IF 1T
COMES AT ALL.
u For while the rule in our State, first
enunciated in Ponton's case g Jones Law,
page 245, and adverted to IN Hardy
case IA, n. G. page T34 and 20, n. Y.
mage S. in some of the later State cases
nd ia ifs auTlIPa flnu.
8 and some of our cases are apparently
conflicting and irreconcilaIble, yet IN
-ss Hobbs case and Hagin's case IN the 106
and 107 n c., it is made the well estab-
&c fished rule: WITHOUT LIMTTAT1ON
OR EXCEPTION.
- At first our Supreme court seemed in
clined to adopt what is known as the
superior servant limitation of the rule,
and place itself on a line with the courts
of Ohio, Kentucky and the United States
Supreme court, in Patton's case 90 n. G.
page 455 decided in 1887 in which the
court. Judge Merrimon delivering the
g opinion, seemed TO content itself with
the fact that the servant, section mas
ter, occupied a superior position, having
power to command, and to hire and dis
charge hands
But in the very next report in Webb's
case 81 n. @. page 3S1, it was DECIDED,
that the IacC DDdL Il CO-elHpiVy las WH-
81 thorfty from the common master TO dis
81 charge his fellow servants does not con-
stftute him a vice principal
Practically all the former decisions,
- which might be construed as favorng
" the superior servant limitation Of the
rule, including Patton's, and Kinks case
o. N. O., and Cowles case Sd ~ G. and
Dobbin's case 81 N. c., and oyer-ruled
by the case of Webb
r. / have not been able to discover that
our Supreme court has adopted the hmi-
tation known as the Different Depart
ment Limitation, where the two servants
are placed in Different Departments or
Branches Of the common service, of the
y common master or principal, which limi-
tation has been advanced and adopted by
the courts OF Illinois, Georgia, Kentucky,
tennessee, Virginia and West Virginia.
- But it has in Hobbs case adopted the
rule, without exception or limitation, just
7tA as it has come down from the cases of
go Prjestiy VS.. Fowler in England in 1887
and Murray VS.. South Carolina Railroad
Company in this country in 1S41. rs.
sn7 The rule must still be enforced in the
go State under the principle of Stare De-
g cists, unless the General sF Assembly abol-
~ ishes it, = f.,tnasr.ueg y fy.--.g -
o. ginning with the Priestly VS. Fowler
case, was enuncated by the. courts of
England and OF this country, and sent
upon its devious way, it has been bur-
dened with and hedged about with eK-
ceptions and Limitations, and much diff
fculty has been experienced in its prac-
teal application in manner consistent
with justice. v n
There have been two lines OF cases
= growing out of the Superior Servant and
Different Department Limitations, which