#### McG. LEGGETT, Administrator, v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 9 March, 1910.)

1. Master and Servant — Assumption of Risk — Master’s Negligence.

By assuming all those risks naturally incidental to the work he is employed to do, an employee does not thereby assume those arising exclusively from his employer’s negligence.

2. Master and Servant — Carriers of Freight — Dangerous Track— Duty of Master.

A carrier is conclusively presumed to have knowledge of the fact that its track has become so out of repair as to be dangerous to its own employees and its passengers, for it is its duty to provide a reasonably safe roadbed.

3. Master and Servant — Carriers of Freight — Dangerous Track— Negligence — Evidence.

Evidence that plaintiff’s intestate, a brakeman on defendant railroad company’s work train, was seen on a car of its moving train by its engineer, and shortly thereafter, when the engineer looked again, he was missing; that the engineer went back looking for him and found him dead from injuries apparently received by the train passing over him; that the track was in such a dangerous, uneven and bad condition as to probably have caused him to fall from the train and receive the injury; that at place his body was found there was a very rough place and sink in the track, is sufficient to warrant the reasonable inference that the rough condition of the track was the cause of the intestate falling to his death, and take the case to the jury.

*1114. Same — Corroborative Evidence — Discrepancies.

And when, in corroboration, a witness testifies that he, at or about the time and place of the occurrence, saw the train with a man on it; that he saw the cars of the train slamming and jarring, suddenly stop, and when it again started he did not see the man again, the nest morning again identifying the place by blood on the track, the evidence clearly indicates that the death of the intestate resulted from defendant’s negligence, notwithstanding there is a slight discrepancy in this witness’s testimony as to the number of ears and the position of the intestate thereon; and such evidence is sufficient to sustain a verdict of defendant’s negligence.

Appeal from Cooke, J., December Term, 1909, of Maetist.

These issues were submitted:

1. Was the plaintiff’s intestate killed by the negligence of the defendant company, as alleged? Answer: Yes.

2. Did the plaintiff’s intestate, by bis own negligence, contribute to bis death? Answer: No.

3. What amount of damages is the plaintiff entitled to recover? Answer: $'7,229.

From the judgment rendered the defendant appealed. The-facts are stated sufficiently in the opinion of the Court.

A. R. Dunning for plaintiff.

F. S. Spruill, H. W. Stubbs for defendant.

Brown, J.

There are no assignments of error relating to the reception or rejection of evidence, and we think that all the other assignments of error, relating to the charge of the court, may be considered in passing upon the motion to non-suit. This motion and the several exceptions to the charge are based upon the contention that there is no evidence that the alleged negligence of the defendant was the proximate cause of the intestate’s death.

The doctrine of assumption of risk has no application here, for it is not contended by plaintiff that he is entitled to recover unless he should satisfy the jury that the cause of the death of his intestate was the negligence of the defendant.

It is elementary that while an employee assumes all those risks naturally incidental to the work, he does not assume those arising exclusively from his employer’s negligence.

The evidence, offered by the plaintiff, tends to prove that the intestate was a brakeman on defendant’s freight train running on defendant’s belt line around Wilmington. The duties of the train on which he was employed were to shift cars around the belt line to and from the Wilmington yard and the several factories on the belt line; to take out empty cars that *112bad been unloaded and put in cars loaded witb material for tbe factories, and vice versa. On tbe nigbt of tbe accident, tbe engine, witb its crew of men, one of wbom was tbe plaintiff’s intestate, was at an industrial plant on tbe belt line known a.s tbe Standard Turpentine "Works. Tbe train was made up of an engine running tender forwards, pushing two empty box cars and one empty flat car; immediately next tbe engine in tbe string of cars being drawn was tbe one empty flat car. When tbe work at tbe Standard Turpentine Works was finished, tbe signal indicating that tbe work was done and directing the engineer to go on into tbe Wilmington yards was given by tbe plaintiff’s intestate, who was then standing on tbe box car next to tbe flat car that was attached to tbe bead of tbe engine. Tbe crew were then six or seven miles out from tbe Wilmington yards.

In response to tbe signal given by tbe plaintiff’s intestate, tbe engineer started witb bis train back .to tbe Wilmington yards. When tbe train arrived at Fernside junction, on tbe way into Wilmington, tbe engineer discovered that tbe plaintiff’s intestate was missing. The train at once backed back on tbe track, taking tbe engine witb tbe flat car at tbe bead of it and tbe two wood-rack cars behind, and leaving tbe other cars in tbe switch at tbe Delgado Cotton Mills.

They found plaintiff’s intestate lying across tbe track, dead, bis body cut in two parts evidently by tbe train passing over it.

There is abundant evidence in tbe record that about where tbe body was found tbe track was in a fearfully bad condition, quicksand foundation, and water running across tbe track; that there was a very rough place in tbe track just where intestate’s shoes were found. In fact, tbe evidence is not contradicted that tbe entire track of tbe belt line is in a most unsafe and dilapidated condition. That tbe defendant is conclusively presumed to have knowledge of it is beyond controversy, be- ' cause o.ne of its obligations to its employees, as well as to passengers, is to provide a reasonably safe roadbed. Thomas v. R. R., 131 N. C., 592.

There is evidence that while tbe train was speeding towards Wilmington at- twelve miles an hour over this rough, uneven and sinking track, tbe intestate, as brakemen are called upon to do, was moving along tbe cars presumably in the discharge of bis duties.

It is contended that be fell between tbe cars and was run over. We think it quite plain, from tbe undisputed evidence, that tbe intestate met his death in this manner. We have no difficulty in bolding that tbe evidence warrants tbe reasonable inference that tbe rough condition of tbe track was tbe cause *113of tbe fall. Tbis is manifest when we consider its condition at and about the place where the body and the shoes were found.

There is another ground of negligence alleged, and supported by evidence of the witness David Baldwin. He testified that on the evening of 3 October, 1907, at about 6:30 o’clock, he was coming home from hunting, and passed within about fifteen or twenty steps of the track of the belt line; that while he was there a freight train passed him with two wood-rack cars in front of the engine and eight or ten cars behind it, going towards Delgado Mills; that he saw a man on the rear part of the train, sitting on the car, his feet hanging down between the ears. He had his lantern, and his right hand on the brake; that about half the distance between Sixth and Seventh streets the train was going a pretty good speed, and stopped all at once, and those cars rushed on the engine and made a most violent slamming and jarring of the cars, and then the train started again; that after the sudden stopping of the train he did not see the man again; that the next morning he was down at the track, and at the point where the cars slammed together he saw evidences of blood, etc., on the ground. At this place the track was in a very uneven, rough and bad condition.

Although this witness may be in error as to the number of cars, the description of the train and the position of the brakeman, yet his evidence is to be considered by the jury upon the main question of negligence. His discrepancies may affect his credibility, but he testifies unequivocally to the violent jarring and slamming. He also testifies to the blood, and it was not far from where the body was found. Undoubtedly, the blood testified to by Baldwin came from the intestate’s body. It is not claimed that any one else was killed or hurt on the belt line .that night.

That the evidence, taken as a whole, was sufficient to go to the jury, and warrants the reasonable inference that the bad condition of the track and the violent “slamming” of the cars and stopping of the train threw the intestate off his balance between the ears and caused his death is hardly debatable. With due deference to the argument of the learned counsel for defendant, we cannot resist coming to that conclusion ourselves, although we are not triers of the fact.

We find nothing in the evidence to support the plea of contributory negligence, and we find no assignment of error in the brief bearing upon the issue of damage.

No error.