#### JAMES A. ZACHARY, Administrator of HERBERT H. BURGESS, v. NORTH CAROLINA RAILROAD COMPANY.

(Filed 9 November, 1911.)

1. Railroads — interstate Commerce — Federal Employees’ Liability Act.

The act of Congress of April 12, 1908, known as the Federal Employees’ Liability Act, applies only to a carrier by railroad while engaged in interstate commerce, and only to an employee “suffering injury while he is employed by such carrier in such commerce.”

*4972. Same.

The killing of a railroad employee by a local switch, engine while backing down the main line for the purpose of cutting out box cars from an interstate train, to place them in making up an unconnected train to run from and to points in the .State, after he had left the train and was crossing the railroad yards to his boarding place, does not constitute a cause which falls within the provisions of the Federal Employees’ Liability Act.

3. Same — Lessor and Lessee — North Carolina Railroad.

By reason of its lease to the Southern Railway Company, the North Carolina Railroad Company does not become an interstate carrier, and while the latter is held to be liable as lessor for the negligent acts of omission or commission in certain instances when an injury is inflicted by its lessee, yet the Federal Employees’ Liability Act can have no application when it appears that the employee was injured after he was off duty from an interstate train, and expecting to go on duty after another train had been made up for a destination within the State.

4. Railroads — Master and Servant — Railroad Crossings — Negligence ' — Questions for Jury. r

Evidence tending to show that plaintiff’s intestate, an employee of a railroad, was killed at night by defendant railroad company’s shifting engine funning backward without light or flagman on the end of the tender, at the rate of fifteen or twenty miles an hour, and while he was going to his boarding place, where he and other employees customarily passed, is sufficient for the jury upon the question of defendant’s negligence.

5. Railroads — Crossings—Look and Listen — Master and Servant— Nature of Employment.

While an employee of a railroad must exercise reasonable care for his own safety, the rule that one who crosses a railroad track must, as a matter of law, look and listen before doing so, does not apply in all its strictness to one who is employed in a railroad yard and whose duty makes it necessary for him to go frequently upon the tracks.

6. Railroads — Crossings—Master and Servant — Nature of Employments — Contributory Negligence — Questions for Jury.

There was evidence tending to show that defendant’s fireman, who had just come in on defendant’s train, was hurrying across its tracks at night to his boarding-house for his supper, going by the way ordinarily used by himself and other employees, with the purpose of soon returning to go out as fireman on another train of the defendant, and was run over and killed by defend*498ant’s switching engine running backward at the rate of fifteen or twenty miles an hour, without light or lookout on the end o'f the tender; that another engine nearby with its blower on was making a loud noise so that the bell of the engine causing the ■ death could not be heard by the intestate. There was evidence . to the contrary: Held, the question of contributory negligence was not one of law, but for the jury to determine.

Appeal from Daniels, J., at February Term, 1911, of Guil-ford.

Tbe action is brought to recover damages for tbe negligent killing of Herbert H. Burgess, a fireman in tbe employment of tbe Southern Eailway Company, tbe lessee of tbe defendant, at Selma, N. 0., 29 April, 1909.

These issues were submitted to tbe jury:

1. Was tbe intestate1 of tbe plaintiff killed by tbe negligence of tbe lessee of tbe defendant, as alleged in tbe complaint? Answer: Yes.

2. Did tbe intestate of tbe plaintiff contribute to bis death by bis own negligence? Answer: No.

3. What amount, if any, is tbe plaintiff entitled to recover? Answer: $2,000.

From the judgment rendered defendant appealed. Tbe facts are sufficiently stated in tbe opinion of tbe Court.

John A. Barringer, G. S. Bradshaw, and T. M. Oalvert for ;plaintiff.

Wilson & Ferguson and John K. Graves for defendant.

Brown, J.

There are twenty-three assignments of error in tbe record, none of them relating to tbe reception or rejection of evidence. These assignments present for consideration tbe three principal contentions of tbe defendant:

1. That tbe act of Congress of 22 April, 1908, known as tbe Federal Employees’ Liability Act, applies, and that tbe cause should have been determined under tbe provisions of that act.

2. That there is no sufficient evidence of negligence.

3. That in any view of tbe evidence, tbe intestate was guilty of such, contributory negligence as under the law of this State bars recovery.

Does tbe Federal act apply?

*499Plaintiff’s intestate was fireman of engine 862, which was standing at the time of the occurrence on the cinder track at Selma, N. 0. He had been oiling his engine and preparing it to take a train from Selma to Greensboro, which was made up at Selma. He started across the tracks to go to his boarding-house before leaving, and was stricken and killed by a local switch engine, which at the time was backing down the main line for the purpose of cutting out two cars, which had come in from Pinners Point, Ya., on train 72 for transportation to Greensboro, N. 0. Train 72 is known as Pinners Point train via Selma to Goldsboro, N. G.

Engine 862 was not attached to any cars at the time, but was being prepared to haul a train from Selma to Greensboro composed of miscellaneous cars. All ears brought in from Pinners Point, Ya., by train 72 for points west of Selma are included in this train.

We are of opinion that the Federal act does not apply, and that the case was properly tried under the State law.

The act applies only to a carrier by railroad while engaging-in interstate commerce, and only to an employee “suffering injury while he is employed by such carrier in such commerce.”

The point was not discussed on the argument or in the briefs, but it occurs to us that the. North Carolina Eailroad is not an interstate railroad, nor is that corporation itself engaged in interstate commerce. Its tracks and property lie wholly within the State of North Carolina, extending from Goldsboro to Charlotte. It is true, the tracks and property are leased to the Southern Eailway Company, a corporation of another State, that is engaged in both inter- and intrastate commerce; but that does not necessarily make the North Carolina Eailroad Company an interstate carrier within the meaning of the act of Congress, any more than A would be made a wholesale grocery merchant because he had leased his warehouse to B, who conducted such business in it, and had assumed responsibility for B’s debts.

The corporation known as the North Carolina Eailroad Company is in existence, has its officers and directors, receives its annual rents from its lessee, the Southern Eailway Com*500pany, and distributes them among its stockholders; but it is not an interstate carrier within the meaning of the Federal act.

It is also true that this Court has held in Logan v. R. R., 116 N. C., 941, that this lessor is responsible for all acts of negligence of its lessee occurring i-n the conduct of business on the lessor’s road, it matters not what kind of commerce the lessee is engaged in at the time. But that is because a railroad corporation cannot escape its responsibility by leasing its road. It is still liable for its lessee’s acts of commission and omission, whether they occur in interstate or intrastate commerce, although the lessor is not actually engaged in either.

We do not think the Federal act applies, for the reason that the deceased at the time when killed was not employed by the Southern Railway, the lessee, in interstate commerce. At the time he was killed the deceased was not engaged in an act of any kind of commerce. He was on the way to his hoarding-house for a purpose entirely personal to himself and not on the carrier’s business. The deceased had oiled and prepared his engine to make the run from Selma to Greensboro, points within this State. The engine was stationary and had not been attached to any cars. The deceased was on his way to his boarding-house, and was killed by a local switch engine which was then unattached to any cars, but going for two cars from Pinners Point, Ya., for the purpose of attaching them to the train that engine 862 was expected to pull. So far as the evidence shows, the deceased nor his engine had ever been engaged in any other work except this local run from Selma to Greensboro.

If the contention of the defendant can be maintained, then it follows that all employees of railways that do an interstate business are necessarily employed in interstate commerce. The ticket seller who sells a ticket to a traveler going beyond the State, the ear cleaner who cleans the ear he is to travel in, the man who loads the engine tender with coal which is to pull him, and the gatekeeper who examines his ticket and passes him on to his car, are all employed in interstate commerce.

The Employees’ Liability Act of 1906 was declared repugnant to the Constitution because by its terms it embraced all *501employees of a railroad, interstate and intrastate, and that the two were so interblended in the statute that they were incapable of separation. Employees’ Liability cases, 207 U. S., 463. If the contention of the learned counsel fox defendant be well founded, then the subsequent act of 1908 would apply to all employees of a railway engaged in both kinds of commerce, however remotely they are connected with it. This would accomplish the very end which it would seem could not be accomplished by the Federal Congress under the first act. This contention would extend the power of Congress to almost every conceivable subject of railway transportation, however inherently local, and would destroy the authority of the States over matters which from the beginning have been under their control.

Was the evidence of negligence sufficient to justify the court in submitting the matter to the jury? We think so. The evidence offered by plaintiff tends to prove that the deceased was compelled to cross the several tracks of the railroad to go from his engine to his residence; that it was customary for all employees to pass to and fro over these tracks; that it was dark at the time and the switching engine was running backwards, tender foremost, from fifteen to twenty miles an hour. Two witnesses testify that there was no light whatever on the end of the tender that was moving forward, nor any flagman there. This is ample evidence of negligence to go to the jury. Ray v. R. R., 141 N. C., 84; Smith v. R. R., 132 N. C., 819; Purnell v. R. R., 122 N. C., 832.

Was the plaintiff’s intestate, in any view of the evidence, guilty of such contributory negligence as bars recovery? We think not, and that his Honor properly submitted that matter to the consideration of the jury. Had it appeared from the evidence offered by plaintiff that his intestate was guilty of contributory negligence, it is settled by precedents that the court may sustain the motion to nonsuit or direct a verdict upon that issue. Baker v. R. R., 150 N. C., 562; Strickland v. R. R., 150 N. C., 4.

Hndei the conditions surrounding the intestate we cannot say, as matter of law, that in any view of the evidence he was *502guilty of contributory negligence. His Honor properly submitted tbe matter to tbe jury under wbat is commonly known as tbe rule of tbe prudent man. There is strong evidence of contributory negligence, but tbe evidence is not all of tbat character from which only one inference can be drawn.

If nothing appeared in evidence except tbe testimony of Oliver, tbe engineer of tbe switching engine tbat killed tbe intestate, it may be tbat tbe court might well have sustained tbe defendant’s contention. But there are many facts and circumstances in evidence which tend to exculpate tbe intestate and to explain bis conduct. Tbe intestate was evidently in a burry to go to bis residence and return to bis engine; be was compelled to cross six tracks; there was no other way; it was tbe universal custom' for tbe employees to cross these tracks passing to and fro from their places of residence on tbe south side; tbe big freight engine 119 was standing on a track about eight feet from main line with its blower on, making a very loud noise, so tbat tbe hell of tbe switching engine could not he beard by tbe intestate, who at tbe time came from behind No. 719 and started to step on main track and was killed by tbe switch engine. Tbe engineer of tbat engine says tbat tbe intestate did not look, and tbat if be bad looked be could have seen tbe switch engine. Tbat is tbe construction put by tbe engineer upon intestate’s conduct from tbe engineer’s point of view, but under all tbe' circumstances, taking tbe evidence as a whole, it ought not to be held to be conclusive. Tbe intestate could not well bear the ringing bell or tbe approach of the switch engine because of tbe blowing off of 719. It was dark and possibly be could not see tbe switch engine. He bad tbe right to rely upon tbe invariable requirements that an approaching engine will display a headlight at night. Had there been a headlight • be would probably have seen it before be stepped upon tbe track. Tbe absence of it may have misled him, and lured him to bis death.

While an employee must exercise reasonable care, tbe rule tbat one who crosses a railroad track must, as a matter of law, look and listen, before doing so, does not apply in all its strictness to one who is employed in a railroad yard and whose duties *503make it necessary for Mm to go frequently upon tbe tracks. Wolf v. R. R., 154 N. C., 571; Sherrill v. R. R., 140 N. C., 255; Weiss v. Bethlehem Iron Co., 88 Fed. Rep., 23; St. Louis, etc., R. Co. v. Jackson, 78 Ark., 100; 93 S. W., 746; Baltimore, etc., R. Co. v. Peterson, 156 Ind., 364; Shoner v. Pennsylvania Co., 130 Ind., 170; McMarshall v. Chicago, etc., R. Co., 80 Iowa, 757; Jordan v. Chicago, etc., R. Co., 58 Minn., 8.

It is well said by Mr. Justice Manning in Ms clear and well-considered opinion in Farris v. R. R., 151 N. C., 483: “While we are in no wise inclined to relieve tbe person crossing .tbe tracks of a railroad from tbe imperative duty of observing tbe measure of caution so well established for Ms safety by tbe well-considered decisions of this and other courts, yet ‘it cannot always be said that be is guilty of contributory negligence, as a matter of law, because be did not continue to look and listen at all times continuously for approaching trains, where be was misled by tbe company or bis attention was rightfully directed to something else as well’ (3 Elliott on Kailroads, sec. 1166a), or that be failed to look in opposite directions at tbe same moment of time.”

Taking into consideration tbe whole evidence, and weighing tbe conditions and circumstances surrounding tbe intestate, we are of opinion that bis Honor properly submitted tbe question of contributory negligence to tbe jliry and overruled tbe motion to nonsuit.

Tbe charge is a full and clear presentation of both sides of tbe controversy, and we find no error in it of which tbe defendant can justly complain.

No error.