The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-04-06
AROAD CAN'T DODGE
BEHIND EMPLOYEES
And Escape Responsibility
For Its. Acts.
FELLOW SERVANT LAW
Another Decision of the Supreme Court
Affirming It.
THE END OF ALONG FIGHT IN THE COURTS
The Case Of Wright VS. Southern Railway Tried
in the Courts Six Times. A Rehear-
ing Sought by Railroad in an
Indirect Manner.

lHuHSCt Wd1HSTs
After fight OF four years against the
fellow servant act the Southern Railway
has finally and decisively lost
This fight was made in the suit of R.
L. Wright administrators for Wilson Will
case has been tried six times-three
times in the Superior court of Rowan.
and three times in the Supreme court.
In every instance it was contested with
great vigor.
The plaintiff was represented by Lee S.
Overman, A. C. Avery and R. Lee Wright,
Esq. The railroad was represented by
Charles Price and A. H. Price.
The last decision was handed down last
Tuesday. and it is to the effect that
whenever injury is sustained by any per-
son in an accident. the railroad is pre-
sumed to be guilty OF negligence and the
burden of proof is upon the railroad to
show that it is not guilty of negligence,
changing the ordinary rule when the bur-
den of proof is on the plaintiff. This rule
applies to employees as we'll as to pas
it is the dutz of the railroad to have
safe road bed. A section master or brake
man is not fellow servant and the
negligence Of a section master is negli-
gence of the company.
HISTORY OF THE CASE.
This was an action for damages for
the death of Wilson Williams. brake
man on the Southern Railway. 1t was
brought by r. L. Wright, administrator.
alleging negligence on the part of the
defendant railroad in not providing a
safe track, in consequence of which the
train was derailed and Wilson was fa
tally injured.
The case was first tried before Judge
Starbuck at the February $3.50 term of
Rowan Superior court. The evidence
showed that the train ran for some dis
lance after it was derailed. Then it
struck rotten cross-t ties, breaking off the
ends and spreading the track, which
caused eight cars and the tender to roll
down a twelve foot embankment, killing
the plaintiff Wilson. Judge Starbuck
held that there being mo evidence that
the place where the cars left the track
the condition of the road bed or track
were defective. in no reasonable view of
the evidence was the plaintiff entitled
to recover"
An appeal was taken and in May, 1898,
the Supreme court held that this was
error; THAT the question of negligence
was one fer the jury, and ordered new
trial, Q22 n. c.. $500.
The case was next tried at the fall
term of Rowan Superior court, before
Judge Allen.
On this trial one of the issues was
this WAS the death of Wilson caused
by the negligence of a fellow servant
and Judge Allen charged the jury that it
might find that 1.-THE failure to provide
cross ties was the fault of a fellow SER
want" the section master. The Supreme
court held that this was error, (123 N. c..
2sO).
POINT PRESENTED AGAIN.
The third and" last appeal came upon
the refusal of the Judge to submit the
issue: WAS the death of said intestate
caused by the negligence of a fellow ser
vant?" The defendant railroad contended
that there was evidence which, If sub
mitted to the jury upon such issue was
sufficient to show that the defendant
Furnished sound ties to keep the road in
good and safe repair, and other proper
material and a good reliable section
master, whose duty it was to keep the
road in repair and if it was not in good
and safe repair it was negligence on the
part of the section master, whose negli-
gence was that of a fellow servant The
duty owed by the master to. the servant
the brakeman, (plaintiff's intestate) was
to furnish the ties, and a competent sec
ticn- master. and when this is done its
duty is discharged.
The Judge held that under the decision
of the court in the second appeal in this
case, such q defense was untenable and
he refused to instruct the jury as asked
by the defendant railroad.
The Supreme court affirmed this hold
ing of the lower court and Judge Clark,
writing the opinion says
After this express decision on form
er appeal in thiseease (12S N. c., 2SO) of
the very point now presented the present
appeal is neither more nor less than an
attempt to review the former ruling, not
by a rehearing, in the required method
but by second appeal presenting the
same point. and this is not allowable"
THE EMPLOYER LIABLE.
The decision then goes on to say that
the fellow servant doctrine, as applied to
railroad companies, extended only to
those things happening in the operation of
the road. In such cases it is the duty
of the master to furnish proper appliances
and safe roadbed. The company can
not be heard to say it is not responsible
for defective road bed and dangerous en-
gines and cars because it furnishes good
iron and cross-ties and other Materials
and that the roadbed was unsafe by
reason Of negligence of its employees.
The responsibility of supervision and
acceptance is on the master. 1t is not
like the negligence of a fellow servant in
the operation Of the business which is