#### WILLIAM ALLEN v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 16 October, 1907).

1. Railroads — Damages—Issues—Last Clear Chance.

In an action for damages on account of the alleged negligence of the defendant, when the evidence shows that the plaintiff was an experienced' brakeman, and, while helping a fellow-servant to place some cars on a siding, attempted to get upon the ears in an unusual and unforeseen manner, and fell between the cars and was injured, it was proper for the court below to refuse an issue as to “the last clear chance.”

2. Railroads — Running Switch — Negligence per se.

Making a running switch is not negligence per se on the part of the employer having the employee to make it, when the detached moving car has a brakeman on it and is under control.

*2153. Railroads — Contributory Negligence — Questions for Court.

When it was the duty of the brakeman to be on top of the cars as they were being “shunted” or “lacked” from the track onto the switch where they were to be placed, and he jumped from the ground to a moving coal car, next to a shanty, for the purpose of ascending the ladder of the shanty, and saw the switchman in the act of “cutting loose” the shanty, as ordered, and endeavored to leap upon the shanty as it was “cut loose,” and fell and was injured, this is contributory negligence, and will bar recovery in a suit by him against the railroad company.

Civil actioN to recover damages, for personal injuries, tried at November Term, 1906, of LeNoie Superior Court, before J ones, J., and a jury.

Tbe Court submitted the following issues:

1. Was tbe plaintiff, William Allen, injured by tbe negligence of tbe defendant ?

2. Did tbe plaintiff, William Allen, contribute to bis injury by bis own negligence ?

3. Wbat amount, if any, has plaintiff been damaged %

Tbe jury answered tbe first issue “Tes,” and tbe second issue “Yes.”

From tbe judgment, that tbe defendant go without day, tbe plaintiff appealed.

Loftin é Varser, Or. V. Gowper and M. R. Allen for plaintiff.

Bouse & Land for defendant.

BkowN, J.

Upon tbe trial tbe plaintiff tendered tbe issues submitted, and also another issue, as follows: “If tbe plaintiff contributed to his own injury, could tbe defendant have avoided tbe injury by due care V’ Tbe refusal of tbe Court to submit this issue is strongly pressed by plaintiff as error. Tbe contention of a plaintiff that, although be may be guilty of negligence, yet tbe defendant bad tbe last opportunity to prevent injury, can be presented under tbe issue of contributory negligence, as negligence, to bar recovery, must be shown to be tbe proximate cause. Baker v. Railroad, 118 N. C., *216 1021; Ramsbotlon v. Railroad, 138 N. C., 38. We find nothing in this case which warrants the application of the so-called doctrine of the last clear chance. The only person who, it is claimed, could have intervened and saved the plaintiff from injury was the brakeman, Outlaw, and we see nothing in the evidence to sustain the contention that he could have done it. It appears by plaintiff’s own testimony that he had been employed on a freight train of defendant, and was an experienced brakeman; that he was ordered by the conductor to go help Elias Outlaw place some shanty cars on the siding; that, instead'of going to the side of the shanty cars where the ladders were, he let the shanties pass, and jumped on a coal car, which was the first car after the shanties passed. In respect to this contention the plaintiff’s evidence is as follows: “As soon as I caught the coal car, which was the first car that reached me after the shanties passed, I got upon the platform of the coal car and at once started to step from it to a ladder on the shanty car, which I was going to place on the side track. Just as I was stepping to this ladder on the shanty car the switchman cut off the cars and dropped me from the center of the track down to the ground.” This testimony makes the acts of plaintiff and the switchman, Outlaw, practically simultaneous. Upon the plaintiff’s statement, then, there was no intervening time between his step and the act of Outlaw in disconnecting the cars to have enabled any agency to have been brought to bear upon the occurrence which could have averted the injury. Therefore, there is no possible deduction in the testimony which would have permitted the submission of this issue. Again, there is no evidence in the record that Outlaw saw the plaintiff as he started to climb from the moving coal car onto the shanty, or that Outlaw had any reason to expect the plaintiff to take that way of going on top of the shanty instead *of the usual method of climbing from the ground by the ladders. There was no “last clear chance” left to Outlaw to avoid the injury, and no evidence that he neg*217lected .any duty be, as a fellow-servant, owed tbe plaintiff. Tbe evidence, therefore, does not support tbe issue tendered, and for tbe same reason, we think, bis Honor properly declined to' give plaintiff’s prayer for instruction embodying such contention. Ellerbee v. Railroad, 118 N. C., 1026; Taylor v. Railroad, 109 N. C., 236.

1. Tbe only exception to the evidence and most of the prayers for instruction relate to tbe first issue; and as tbe jury answered that issue in favor of tbe plaintiff, it is unnecessary to consider them.

2. Tbe contention of plaintiffs, as presented in prayers for instruction upon tbe second issue, that “kicking” cars is negligence per se, and the proximate cause of the plaintiff’s injury, seems to be founded upon a misapprehension of tbe decisions. Tbe word “kicking” seems to be used, in railroad parlance, as synonymous with making a “flying switch.” This Court has never held such operations to be per se negligence in respect of tbe employees performing them. It is “tbe attempt to make a running switch” when tbe detached car has no brakeman on it and is under no control that is declared to be negligence, because highly dangerous. Wilson v. Railroad, 142 N. C., 336, and cases there cited.

3. The plaintiff further requested tbe Court to charge that there is no evidence of contributory negligence. We tbink bis Honor properly denied bis prayer. There is ample evidence in tbe record to go ~to tbe jury upon that issue. In fact, bis Honor might well have instructed tbe jury that tbe plaintiff, upon bis own showing, was guilty of contributory negligence, and by bis careless conduct caused bis injury. Plaintiff was ordered to assist the switchman, Elias Outlaw, in sidetracking tbe “shanties.” Being a brakeman, he knew bis place was on top of tbe shanties and at tbe brakes, so be could control tbe cars as they were “shunted” or “kicked” from tbe track onto tbe switch. He jumped from the ground to tbe moving coal car, next to tbe shanty, for tbe purpose of ascend*218ing the ladder. When he mounted the coal car he saw the switchman at the crank and knew he was in the act of “cutting loose” the shanties, as ordered. The plaintiff never called to Outlaw, but took his chances and endeavored to leap, onto the shanty car just as the switchman “cut it loose.” The plaintiff probably believed that he could successfully make the leap, or doubtless he would not have attempted it. He made a mistake, as other unfortunate men have done before, and fell to the ground between the moving cars and was injured.

The majority of the Court is of opinion that there is

No Error.