#### CORA REEVES, Administratrix, v. NORTH CAROLINA RAILROAD COMPANY.

(Filed 18 November, 1909.)

1. Raiíroadá — Negligence—Moving Trains — Brakemen—Scope of Employment.

When it appears that the plaintiff, a brakeman, has received the injury complained of from a defective handhold by following a custom of brakemen in jumping off and on another train ahead of his own train in order to reach a switch to change it, and such custom was known to and approved by the superior officers of defendant, a motion to nonsuit upon the evidence on the ground that he acted therein outside the line of his duties, will not be sustained.

*3192. Same — Evidence—Nonsuit.

The rule that persons cannot recover damages of a railroad company for an injury received while getting on and off a moving train, does not apply in its full strictness to brakemen acting in the line of their duty.

3. Railroads — Negligence—Moving Trains — Brakemen.

The test of whether a brakeman, while engaged in his employment with defendant railroad company, was guilty of contributory negligence and barred of recovery in his action for damages for an injury sustdined by him while jumping on or off his moving train, is whether a person of ordinary prudence, in his position, would have acted likewise.

4. Railroads — Moving Trains — Brakemen—Contributory Negligence.

If a brakeman jumps on or off a moving train, when it is obviously dangerous for him to do so, he is guilty of such eon-tributary negligence as will bar recovery. As there was conflict of evidence in this case as to the speed of the train the question was properly submitted to the jury.

Appeal from Long, J., April Term, 1909, of Guilford.

Civil action, to recover damages for tbe negligent killing of Joseph Reeves.

Tbe three issues of negligence, contributory negligence and damage were submitted to tbe jury, and answered by them in favor of tbe plaintiff. From tbe judgment rendered, tbe defendant appealed.

Tbe facts are stated in tbe opinion of tbe Court.

J. A. Barringer for plaintiff.

Wilson & Ferguson for defendant.

BeowN, J.

Tbe only assignment of error relied upon in defendant’s brief is to tbe denial by tbe court of tbe motion to non-suit.

Tbe evidence tends to prove that deceased was a yard brake-, man on tbe new Pomona yards, and that bis duties required him to switch cars, change switches and get on top of cars to tie tbe brakes. At tbe time be was killed be was proceeding in tbe discharge of bis duty to tbe switches, to shut them, so that yard engine 682, to which be was attached, could go on its way to Greensboro on tbe main line. Engine 1632, with cars attached, bad tbe right of way and preceded No. 682. Deceased jumped on one of tbe cars attached to 1632 to go to tbe switches to close them, after 1632 bad passed out, as was bis duty. As be took bold of tbe band-bold, placed on tbe cars for tbe purpose, it broke and be was killed.

*320Tbe motion to nonsuit is based upon two grounds:

> 1. It is contended tbat be was guilty of contributory negligence, as be was outside of tbe line of bis duty.

Tbis cannot be sustained, as tbe evidence shows tbat it was tbe duty of Beeves to go down there and close tbe switch, and tbat it was tbe habit of tbe yard brakeman and all other brakemen of tbe Southern Bailway Company on tbe Pomona yards to jump on moving cars and ride to the place where they changed tbe switches, and tbat was known to the men who were in control of the Southern Bailway Company here in Greensboro and on tbe Pomona yards, where tbe alleged injury happened, and permitted by them. This takes the case out of the principle laid down in Bailey’s case, 149 N. C., 169.

2. It is contended tbat tbe intestate was guilty of negligence, per se, in attempting to board a moving train.

We admit the general rule, as well established, tbat persons who are injured while attempting to get on or off of a moving train cannot recover for any injuries they may sustain. Whitefield v. Railroad, 147 N. C., 236; Burgin v. Railroad, 115 N. C., 673; Johnson v. Railroad, 130 N. C., 488; Morrow v. Railroad, 134 N. C., 99. But this rule does not apply with absolute strictness to “train bands,” brakemen and the like, who are accustomed, from tbe nature of their duties, to getting on and off moving trains, where, as in tbis case; tbe custom is general, and not only tolerated, but approved by their superior officers. Of course, if a “train band” attempts to board a train moving so rapidly tbat a person of ordinary prudence in bis position would not attempt it, and is injured, be cannot recover. We are unable to say, as matter of law, based upon tbe evidence, tbat such was tbe case here. His Honor therefore left that to the jury, under proper instructions. Johnson v. Railroad, 130 N. C., 488.

We think tbe court below did not err in denying tbe motion.

No error.