#### E. N. DUVALL v. RECEIVERS SEABOARD AIR LINE RAILWAY.

(Filed 4 May, 1910.)

1. Railroad — Baggageman — Scope of Employment — Master and Servant.

Tiie mere fact that plaintiff, a baggageman employed on defendant’s train, received the injury complained of caused by a head-on collision, when he had stepped into the express ear from the baggage car, does not affect his employment at the time, or the responsibility of the defendant.

2. Railroads — Negligence Presumed — Head-on Collision.

A presumption of defendant railroad company’s negligence is raised from the fact that the injury complained of was received by an employee as baggageman in a head-on collision.

Appeal from Lyon, J., at January Term, 1910, of Moobe.

Tbe fact's are sufficiently stated in the opinion of the Court.

H. F. Seawell and Douglass & .Lyon for plaintiff.

Walter II. Neal, U. L. Spence and Burwell & Gansler for defendant.

Clark, C. J.

The plaintiff was baggagemaster and flagman on the defendant’s road. This action was brought for personal injuries sustained by him in a head-on collision near Sanford on a through train, going south. The exceptions are numerous, but the real points in the controversy lie within a small compass. The defendant contends that under the Federal Employers’ Liability Act the plaintiff is not entitled to recover, for three reasons : 1. That at the time of the injury the plaintiff was not 'an employee of the defendant. %2. That he was not injured while engaged in interstate commerce. 3. That he was not injured as the result of the defendant’s negligence.

The uncontroverted facts are that the plaintiff was baggage-master and flagman, and.was so. employed at the time of the injury; he carried local baggage in the baggage car and through baggage in the express car; at the time of the accident the train was nearing Sanford, going south, at which point this through train stopped and where through baggage might be taken on; the plaintiff stepped from the baggage car into the express car, and soon thereafter the collision occurred in which he was seriously injured.

The defendant contends that by going from the baggage car to the express car the plaintiff ceased to be an employee, and was not engaged in the scope of his employment. But the fact is that his duties called him to the express car as well as to the *525baggage car, and even if it bad not, tbe fact tbat tbe baggage-man stepped into tbe adjoining express car for a moment would not bave terminated bis employment or put bim out of tbe scope of bis duties. There is no evidence tbat being in tbe express car in anywise enhanced bis risk or contributed to bis injuries. In fact, tbe probabilities are tbat had be remained in the baggage car be would bave been more seriously injured or possibly killed by tbe trunks falling upon bim. Tbe evidence is tbat tbe baggage car was more seriously damaged than tbe express car. Tbe plaintiff’s going into tbe express car was not an unlawful act, and under tbe circumstances could not bave affected bis employment or tbe responsibility of tbe company. Besides, bis duty lay in tbe express car as well as in tbe baggage car, for in tbe former tbe through baggage, which was part of bis charge, was carried, and though there was none at that' time, be might prepare to receive such at Sanford. As to negligence, tbe bead-on collision raised a presumption of negligence (Marcom v. R. R., 126 N. C., 200, and cited cases in tbe Annotated Ed.), and tbe issue of tbe negligence was found by tbe jury.

' After full consideration of all tbe exceptions' we bave been unable to find any error prejudicial to th» defendant.

No error.