#### BILES v. RAILROAD.

(Filed November 15, 1905).

Railroads — N omuit — Defedtive Appliances — N egligence— Assumption of Risk — Fellow Servant Act — Contributory Negligence — Rules, Violation of — Now Waived.

1. On a motion for nonsuit or its counterpart, the direction of a verdict, the evidence of the plaintiff must be accepted as true and construed in the light most favorable for him.

2. In an action against the defendant railroad, if the jury should find that the plaintiff, while in the performance of Ms duty, was injured, as the proximate consequence of a defective engine or defective appliance, then the defense of assumption of risk is not open to the defendant, by reason* of the Fellow Servant Act.

3. While the mere working on in the presence of known and dangerous conditions, but in the honest effort to discharge his duty faithfully, usually treated under the head of assumption of risk, shall not be considered in bar of the plaintiff’s recovery, this does not at all mean that in cases against railroads from. injuries from defective appliances, the plaintiff is absolved from all care on his own part.

4. Except in extraordinary and imminent eases, like those of Greenlee and Troxler' eases, the plaintiff in actions for negligence against railroads is required to act with that due care and circumspection, which the presence of such conditions require, and if apart from, the element of assumption of risk, he has been careless in a manner which amounts to contributory negligence, his action must fail.

5. The violation of a known rule of the company, made for an employee’s protection and safety, when the proximate cause of such employee’s injury, will usually bar a recovery.

6. Where a rule is habitually violated to the knowledge of the employer or where a rule has been violated so frequently and openly, and for such a length of time, that the employer could by the exercise of ordinary care have ascertained its non-observance, the rule is considered as waived or abrogated.

*529ActioN by David Biles against Seaboard Air Line Railway to recover damages for an injury caused by alleged negligence of the defendant, heard by Judge George W. Ward and a jury, at the June Term, 1905, of the Superior Court of ANSON County.

The three ordinary issues in actions of this character were framed for submission to the jury: (1) As to the negligence of defendant; (2) As to contributory negligence on the part of plaintiff; (3) On the question of damages. At the close of the testimony on an adverse intimation of His Honor both on the first and second issues, the plaintiff submitted to a non-suit and appealed.

II. E. McLendon and J. A. Lockhart & Son for the plaintiff.

John D. Shaw and Adams, Jerome & Armfield for the defendant.

Hoee, J.,

after stating the case: In Hopkins v. Railroad, 131, N. C., 464, Douglas, J., delivering the opinion, said: “It is well settled that on a motion for nonsuit or its counterpart, the direction of a verdict, the evidence of the plaintiff must be accepted as true and construed in the light most favorable for him.” Applying this rule to the facts set forth in the case on appeal, we are of opinion that the plaintiff is entitled to have his cause submitted to a jury.

The plaintiff himself testified that he was a brakeman on a freight train of defendant company, and on the night of November 29, 1902, was injured by having his foot run over and crushed by the engine of the train with which the plaintiff was then working; that the injury occurred as the train was entering on the yard at Hamlet, N. C., where there were a great many tracks and switches; that it was a part of the plaintiff’s duties at such times to keep a lookout in front of *530tbe engine, and bis proper placing for tbe purpose was on tbe pilot of tbe engine.

Selecting a portion of bis testimony from tbe notes of tbe evidence sent with tbe case in tbe form of questions and answers, we find tbis statement.

> “Q. Gro on and state bow you were burt ? A. I was on tbe front part of tbe engine, on tbe standard step, where I always bad to ride, going into a yard.

> Q. Wby did you ride there going into tbe yard? A. To look out for tbe switches and loose cars.

> Q. Wby did you ride there to look out for switches? A. That was my duty.

> Q. To look out for switches and cars? A. Yes, loose cars would roll down sometimes and we would change the switches right quick. I would always have to ride so I could throw tbe switch.

> Q. What do you mean by throwing tbe switch? A. Changing tbe switch from one track to another.

> Q. That is, you kept tbe switches in their proper place and order? A. Yes.

At another point tbe plaintiff testified that be could not properly perform tbe duties unless be was stationed in front on tbe pilot, and that tbe defendant would not keep a man who could not keep tbe train ipoving, but was so slow that be would require it to stop to enable him to do bis work; that in order to enable employees, charged with tbis duty, to bold their positions, there was usually a short step on tbe face of tbe pilot, eight to ten inches long and wide enough for tbe placing of one foot, and a bar or rod along tbe beam of tbe pilot by which tbe brakeman could bold on with reasonable safety when the train was in motion; that tbis particular engine bad the step, but did not have the rod or other means to enable tbe plaintiff to bold properly, and as tbe engine was going into tbe yard it jostled or careened in some way — probably by a depression in tbe *531rail; that the plaintiffs foot was jarred from its position on the step, and, not being able to hold, his foot slipped under the forewheel of the engine, was crushed as stated and finally had to be amputated, etc.

If these facts are established, there would seem to be a case of negligent injury, not unlike that of Coley v. Railroad, 128 N. C., 534, and unless the facts are successfully controverted or the plaintiff himself has failed to exercise proper care in the matter, there would be an actionable wrong.

The judge below also expressed an intimation adverse to the plaintiff on the issue of contributory negligence. Without going into a detailed statement of the testimony, we are of opinion that on this issue also the case should be submitted to the jury under proper instructions. The plaintiff has stated in one place that it was a dangerous duty and he had looked for some one to get hurt in performing it. But so far as the mere working on in the performance of a dangerous duty is concerned, this, while sometimes spoken of as contributory negligence, is usually and more properly classed and considered under the head of assumption of risk, and being a contractual defense, where it is allowed, is not open to the defendant by reason of the statute. Private Laws 1897, chap. 56, sec. 1. This statute provides that any employee who is injured by any defect in the machinery, ways or appliances of a railroad company shall be entitled to maintain an action; and section 2 provides that any contract or agreement, expressed or implied, made by any employee to waive the benefit of the aforesaid section shall be null and void. If, in answer to the first issue, the jury should find that the plaintiff, while in the performance of his duty was injured, as the proximate consequence of a defective engine or defective appliance, then the defense of assumption of risk is not open to the defendant. Coley v. Railroad, supra; s. c. 129 N. C., 407.

While the mere working on in the presence of known and *532dangerous conditions, but in the bonest effort to discharge his duty faithfully, usually treated under the head of assumption of risk, shall not be considered in bar of the plaintiff’s recovery, this does not at all mean that in cases of the kind we are now considering, the plaintiff is absolved from all care on his own part. Except in extraordinary and imminent cases, like those of Greenlee and Troxler, 122 N. C., 977, and 124 N. C., 189, he. is still-required to act with that due care-and-circums-pectioil which the'presence of such conditions -require,. and,. if apart- from this 'element oí -.assumption of ’.risk, .the.plaintiff, has: ¡been> Careless¡ in.' ia;anajimer' which amount^¡ t©¡• contributory negligence; --llis - action .must-- >f ajl.

There isKtev-ildence- -here-tending.'to ¡show .'that- thexplaiptiff, at']thtei,timé-.of'.the injury, in-.taking Jais ¡position qnijtheipilot bf.'the-'engkie,fwas ¡acting in violation -of ¡the-rules-.of the-conn pány. . i¡While,the. .disposition! of -the'.present':appeaL';dtieS/hot require-' that- • we - consider! evidence-' making- for thedef ehse, we jdeéirL.;it-.well-.to.’3aote[ithat-.(the violation-of .¡a .knóAvn-rule ofr.-the(¡company.imade-.Tor an ,-empIó^eels -protection' ;and sáfety,. when; -the--próx-imaté cause- of; sueb/imployeeis injury, will. úsúalLy-har-.a.¡recovery.,-.. This- is¡ only true, howevér'-iof aii-rú-leí which ¡.is alive'.and.;enforced,--and-"'does,not -obtain where'¡alru-le is¡habitually' violated to-¡the..knowledge of <the employer- ¡or..;of ¡.-those-. who.:stand-¡towards-..the.¡employer--in the. position1 of vice, principals,-: or-¡when, a -ru-le¡ has ¡been violated. so-.-frequently and openly/and .for such a ¡length-of time; that -the employer,¡could by-.the--exercise;.-of ordinary ¡care havé ¡ascertained 'its¡-non-observance.- ■ Hnder-isnch-'circum-stances, -/thp:,rule--is considered, as-waived‘..or abrogated.;;¡¡5 Thompson Law of Negligence, sec. 5404; Beach Cont. Neg. sec. 373.

¡. There¡ was- error -in¡thé.ruling, of th'e court-below-. and the plaintiff .is entitled todiav.e his-cause, submitted.do¡ .the, juryj

New Trial.

Clark, C. J., and Walker, J., concur in result.