The opinion
*321 BR0WN, J.,
dissenting: I am of opinion, upon examination of tbe evidence in this case, tbat tbe injury of tbe plaintiff cannot fairly be attributed to any negligent act upon tbe part of tbe defendant company. On tbe contrary, I tbink it was a pure accident, wbicb reasonable 'foresight could not guard against.
At tbe time plaintiff was struck by tbe cable, be was away from bis place of duty, and tbe evidence does not show any reason or justification for it. Tbe plaintiff was tbe engineer in charge of tbe skidder. engines on tbe platform.
On tbe occasion when tbe plaintiff was hurt by tbe sEpping of tbe rope over tbe stump, be bad left bis post of duty and bad walked up tbe track a distance of 40 yards to meet one Eobertson, and they were sitting upon a log 6 feet from tbe track and on tbe opposite side of tbe track from where tbe log was being “snaked” in. There is no evidence whatever tbat tbe plaintiff left bis post of duty in tbe company’s service, or to perform any duty for it. Holland v. R. R., 143 N. C., 437 ; Patterson v. Lumber Co., 145 N. C., 42 .
Assuming tbat tbe evidence discloses tbat tbe plaintiff was injured by tbe negligent act of some one, it is plain to my mind tbat it was tbe act of a fellow-servant, for wbicb tbe defendant is not responsible. ■
Tbe plaintiff was not injured in tbe conduct of any railroad operations. It is well known tbat a log skidder is no part of a railroad outfit. It is used and operated by lumber companies tbat have no railroad tracks and transport their logs by water.
At tbe time of tbe injury tbe witness Corey says tbat tbe men gave him tbe signal- to take up the slack in tbe rope, wbicb be did, and then Ellis flagged Corey to go ahead. Then Corey started tbe engine again, and drew tbe rope tight, wbicb caused it to slip over tbe top of tbe stump and strike tbe elm tree, about 8 inches in diameter, and threw tbe tree over on tbe plaintiff, who was 20 or 25 feet from it.
No human foresight could guard against such an accident as this, but if it was any one’s duty to do it, it was Corey’s, and be was tbe fellow-servant of Eobertson.
*322 This Court bas beld iu many decisions tbat these lumber roads to the extent that they operate railroads are to be considered as railroads, and that the statute denies them the benefit of the fellow-servant doctrine; but this ruling does not extend to employees of lumber companies while they are "engaged in the operation of their logging and lumbering plants. This question is discussed at large by Mr. Justice Hoke in the case of Twiddy v. Lumber Co., 154 N. C., 237 , which is on all-fours with the case at bar, and should govern its decision.
I am authorized to say that Justice Walker concurs in this dissent.