The opinion
Brown, J.
Tbis action was brought to' recover damages from tbe defendant on account of an alleged injury to plaintiff while working for defendant in tbe capacity of lineman, while defendant was engaged in tbe business of operating a street railway and “putting up and taking down telegraph and telephone poles and wires.” -
1. While, possibly, not necessary to a decision of tbis case, yet we deem it proper to say for future guidance that we approve tbe opinion in
Hemphill v. Lumber Co.,
141 N. C., 487 , and regard it as settled in tbis State that tbe Fellow-servant Act, Revisal, sec. 2646, applies to street railways.
2. We are, however, of opinion that there is no sufficient evidence of negligence in tbe record, and that tbe motion to non-suit should have been sustained.
Tbe only witnesses examined were tbe plaintiff and bis brother Jim Brookshire, and their evidence tends to prove that tbe injury to plaintiff was tbe result of an accident that ordinary prescience could not foresee nor ordinary care guard against. They, with four others, were engaged in unloading large poles from a car and placing them in position for use on'defendant’s line. One pole rolled into tbe edge of tbe lake at Riverside Park. In getting it out Williams and Wilson “were toting on l'eft-band side of pole”; plaintiff and King on right-band side, and Jim Brookshire and Reagan were “toting the tip end of tbe pole.” There is no substantial difference in tbe testimony of tbe two witnesses. Jim Brookshire testified that “Tbe pole was lying up along tbe side of tbe lake and we started to ‘tote’ tbe pole up tbe lake, and we all reached down to get it up, and Mr. Wilson and Mr. Williams were so much taller than my brother and Mr. Lon King and that throwed most of tbe weight on them, and tbe pole gave a kind of turn, and let my brother and Mr. Lon King drop down a little and we started off with tbe pole, and Mr. Wilson said, ‘Jeff, come up with tbe pole,’ and Jeff straightened up, and my brother said: ‘Let it down, boys; I am hurt.’ ”
Tbe court below should have sustained tbe motion to nonsuit, and it is so ordered.
Reversed and action dismissed.