#### MAGGIE GRAY, Administratrix of K. L. GRAY, v. SOUTHERN RAILWAY COMPANY.

(Filed 23 December, 1914.)

1. Railroads — Master and Servant — Federal Act — Issues as to Damages— Negligence — Contributory Negligence — Diminution of Damages.

It is not required in an action brought under the Federal Employers’ Liability act that damages be assessed under separate issues, one as to the full amount sustained and the other as to the amount to be deducted therefrom by the answer to the issue of contributory negligence; and where the trial judge has correctly charged the jury in this respect, under the one issue of damages, it will not be held as erroneous.

2. Railroads — Negligence—Evidence—Curve—Unobstructed View.

■Where the plaintiff’s intestate has been killed by the defendant railroad’s train, it is competent for a witness to testify that a curve near the place of the injuiw did not interfere with the engineer’s view from his engine at a certain point north of the place, when such is relevant to the inquiry as to whether the engineer saw, or by keeping a proper lookout could have seen, the danger of the intestate in time to have avoided killing him.

3. Trials — Nonsuit—Evidence—How Construed.

In this case it is held that there was sufficient evidence to take the case to the-jury, viewing it in the light most favorable to the plaintiff, and defendant’s motion to nonsuit was properly disallowed.

4. Railroads — Federal Employers’ Liability Act — Master and Servant — Negligence — Common Law — Last Clear Chance — Trials—Instructions—Appeal and Error.

The Federal Employers’ Liability act was passed for the benefit of railroad employees, to afford them a recovery of damages when under the common law their contributory negligence would have totally deprived them of the right; and where there is evidence that an employee of the defendant has placed himself in a position of danger on the track in front of an approaching train, but that the injury complained. of would not have been sustained, had the employees on defendant’s train kept a proper lookout ahead and had performed the duties required of them under the circumstances in stopping the train, the common-law doctrine of the last clear chance is applicable; and a requested instruction to the *434effect that the defendant would not be liable if it did all it reasonably could to stop the train in time, after seeing the intestate’s danger, is properly refused.

Brown, J., dissenting; Walker, J., concurring in the dissenting opinion.

Appeal by defendant from Adams, J., at July Term, 1914, of RaN-dolph.

John A. Barringer for plaintiff.

John T. Brittain and Manly, Hendren & Womble for defendant.

Clark, C. J.

Tbis is an action for tbe wrongful killing of tbe plaintiff’s intestate, under tbe United States Employers’ Liability act, cb. 149, 35 Statutes at Large, 65, amended cb. 143, Statutes at Large.

Exceptions 1 and 2 are that issues as to tbe amount of damages by reason of tbe negligence of tbe defendant and of plaintiff’s contributory negligence were not submitted to tbe jury as separate and distinct issues. But tbe statute does not require tbis. Tbe court instructed tbe jury, in accordance witb tbe statute, to assess tbe damages by reason of tbe death of tbe intestate, if they found it was due to negligence on tbe part of tbe defendant, and to assess tbe amount of diminution on account of.tbe contributory negligence of tbe deceased, and tbe difference, if any, would be tbeir verdict.

Tbe death of the intestate occurred in Virginia, but it was admitted that tbe defendant was engaged in interstate commerce and that tbe intestate was employed by tbe defendant in such commerce at tbe time of bis death. Tbe judge read tbe Federal act on tbe subject and carefully .explained it to tbe jury. He told them that' it required that tbe damages “shall be diminished by tbe jury in proportion to tbe amount of negligence attributable to such employee. Tbis means' that tbe damages shall be diminished in proportion to tbe amount of tbe employee’s negligence, as compared witb tbe combined negligence of himself and tbe defendant, . . . and that where tbe causal negligence, that is, tbe negligence causing tbe death, is partly attributable to tbe employee and partly to tbe carrier, tbe employee shall not recover full damages, but only a proportional amount, bearing tbe same relation to tbe full amount as tbe negligence attributable to tbe carrier bears to tbe entire negligence attributable to both, tbe purpose being to abrogate tbe common-law rtíle exonerating tbe carrier from liability in such cases, and to substitute a new rule confining tbe exoneration to a proportional part of tbe damages, corresponding to tbe amount of negligence attributable to tbe employee.”

Tbe court submitted only tbe two issues, “Whether tbe intestate of tbe plaintiff -was killed by tbe negligence of tbe defendant, as alleged in tbe *435complaint,” and “What damage, if any, is the plaintiff entitled to recover?” But with this instruction the whole matter in dispute was fairly submitted to the jury, and it was not error not to submit separate issues as to how much was assessed by the jury as the total damages and how much was deducted for the contributory negligence. Where the issues submitted fully cover the disputed points it is not error to refuse to submit other issues. Hendricks v. Ireland, 162 N. C., 523, and cases there cited; R. R. v. Earnest, 229 U. S., 114.

Exception 3 is to the admissibility of the testimony of S. W. Jones, that the curve did not interfere with the view at the point 38 rails north of the place of the accident. The testimony was admissible, and the defendant’s brief argues merely the weight to be given such testimony, which was a matter for the jury.

Exception 4 is abandoned, as it does not appear in the defendant’s brief. Buie 34.

Exception 6 was to the refusal to permit the witness Hippert to testify whether, taking into consideration the curve of the .track and the other natural objects there, he could have seen the body beside the track before he did see it. This would have been an expression of opinion which the jury should have drawn from the facts hi evidence, and not the witness. It would be better to admit such evidence, but its admission or rejection can rarely be of sufficient importance to affect the result or justify a new trial.

Exceptions 5, I, and 8 are to the refusal of the motion to nonsuit and to charge the jury to answer the first issue “No.” There was sufficient evidence to go to the jury, and these exceptions need not be discussed. On such motion the evidence must be considered in the most favorable light to the plaintiff. Hodges v. Wilson, 165 N. C., 323; Walters v. Lumber Co., ib., 388. This is familiar learning.

Exceptions 9, 10, 11, 12, 13, 14, and 15 are to the charge of the court, and rest upon the idea that the defendant owed the intestate no duty whatever until the peril of the deceased was discovered by the engineer. This would destroy the entire doctrine of “the last clear chance” in cases of negligence. This is not the intent of the employers’ liability statute, which is in- the interest of the party injured, by making contributory negligence when it exists concurrently with negligence on the part of the defendant, not a complete bar to recovery, as heretofore, but only a matter in abatement in proportion to the comparative negligence of the party injured. The common-law doctrine of negligence still applies, in the construction of the statute, as to the negligence of the defendant. It was the duty of the engineer and fireman to have kept a proper lookout on the track, and if they could not do so, it was the duty of Jhe defendant *436to bave bad still another person on tbe lookout to prevent any avoidable accident. Arrowood v. R. R., 126 N. C., 629. I£ tbe defendant could by reasonable diligence bave discovered tbe critical condition of tbe deceased in time to bave averted tbe injury, it is liable, notwithstanding tbe negligence of tbe deceased. 3 Labatt M. and S. (2 Ed.), 3390, Note 5 ; R. R. v. Ives, 144 U. S., 408.

It is not necessary to discuss more fully tbe facts in tbe case, as they are fully presented in tbe careful charge of tbe corirt, with tbe correct application of tbe law. Tbe distance at which tbe body of tbe deceased could bave been seen was entirely a question for tbe jury upon tbe evidence, as well as the distance within which tbe train could bave been stopped.

Tbe deceased bad put bis red light in tbe middle of tbe track as a danger signal and bad gone to sleep, lying beside tbe track with a white light by him. Tbe engineer testified that be knew that this flagman should be there and that these lights were a danger signal; that be did not undertake to slacken bis speed till be got within 300 feet or less, when be blew tbe signal, and tbe deceased waking and rising up, bis bead was struck by an iron step, which killed him; that if be bad blown tbe signal sooner tbe sleeper would probably bave gotten up in time to bave avoided being struck. There was evidence tending to show that the engineer and fireman were not keeping a proper lookout on tbe track, if any, until they got within 50 yards of tbe sleeper. Dallago v. R. R., 165 N. C., 269.

Tbe whole subject is fully discussed in a late case, Draper v. R. R., 161 N. C., 310, in which Allen, J., states tbe law as follows: “In an action for damages for tbe negligent killing of plaintiff’s intestate, who was down and helpless on tbe track and was run over by the defendant’s train, involving tbe question whether tbe engineer by tbe exercise of ordinary care could bave stopped tbe train in time to bave avoided tbe killing, tbe jury are not bound by the opinions of tbe witnesses, as to tbe distance within which tbe train could be stopped, but may consider tbe evidence as to tbe condition of tbe track, tbe grade, tbe length and weight of tbe train, tbe speed, and other relevant circumstances, and upon tbe whole evidence determine within what distance it could bave been stopped.”

It is not sufficient defense of tbe negligence of tbe defendant that tbe engineer could not bave stopped tbe train in time to avoid tbe death of tbe plaintiff’s intestate after be perceived him on tbe track. Tbe question is whether tbe engineer could bave stopped tbe train in time to bave avoided killing tbe deceased after be could bave perceived tbe danger of tbe deceased, bad tbe engineer and fireman been in tbe exercise of proper *437diligence on tbe lookout. Ray v. R. R., 141 N. C., 87 ; Farris v. R. R., 151 N. C., 491; Edge v. R. R., 153 N. C., 216; R. R. v. Ives, 144 U. S., 408.

No error.

BeowN, J.,

dissenting: I am of opinion that the court below erred in refusing the defendant’s prayer for instruction, and in applying the decisions of this Court instead of following those of the Federal courts, inasmuch as it is admitted that the action was brought under the Federal employers’ liability act. All the evidence tends to prove that plaintiff’s intestate, Kenneth L. Gray, was a brakeman on-a freight train running between Spencer, N. 0., and Munroe, Ya. The freight train was stopped and cut in two for shifting purposes. Gray was sent forward to flag No. 37, a fast mail, due to pass in about 10 minutes.

It was Gray’s duty to go up the track eighteen telegraph poles,,place one torpedo on the'engineer’s side, then go nine telegraph poles further, place two torpedoes on the engineer’s side, and then return to the place where he had placed the one torpedo, and wait with his lanterns until the train arrived.

Gray did not place any torpedoes on the track, but he went up the track about three-quarters of a mile, placed his white lantern on the end of a tie, his red lantern on the rail, and lay down with his head on the end of another tie, with his body on the outside of the track, and went to sleep.

Approaching the point of the accident on the morning of 30 August, No. 37 was four minutes late, and-was running 55 to 60 miles an hour. Just before rounding the curve in the cut, the engineer had blown the station blow for Dry Fork station. The engineer was in his seat, keeping a proper lookout ahead, Avlien he emerged from the cut, and while rounding the right-hand curve he saw the lanterns, sitting on the track ahead of him. He recognized it as a flagman’s signal, and answered the signal with two blasts of the whistle. About the time he had finished answering the signal, he reached the point where the track straightens, his headlight fell upon the track in front of him, and he saw an object lying beside the track'that he thought was a man. He was then about 500 .feet from the point of the accident. He immediately applied his brakes in emergency, shut off his engine, and stopped his train as quickly as he could.

Gray’s head, being on the cross-tie, came in contact with the step of the tender as it passed, and he was killed. There is not a scintilla of evidence that the engineer of No. 37 saw Gray, or discovered his condition, in truje to stop.

*438The court instructed the jury that if the engineer in charge of the approaching train saw, or by the exercise of ordinary care could have seen, the perilous situation and could have averted the injury by any available means in his power, reasonably consistent with the safety of the train and the passengers) and failed to do so, then they should find that the defendant was negligent.

In administering the Federal liability act the State courts are bound by the construction and decisions of the Federal courts. Since Congress has taken possession of the field of employers’ liability to employees in interstate transportation by rail, all State laws upon the subject are superseded. Seaboard Air Line Ry. v. Horton, 223 U. S., 402; Mondou v. Ry. Co., 223 U. S., 1.

Not only have State statutes been made inapplicable, but tjie common law as well, where a construction has been placed upon it by the State courts differing from that of the Federal courts. South Covington R. Co. v. Finan, 153 Ky., 340; W. U. Tel. Co. v. Milling Co., 218 U. S., 406. This subject is elaborately and ably discussed by Mr. Justice Myers of the Supreme Court of Indiana in the recent case of So. Ry. v. Howerton, 105 N. E. Rep., 1026, where all the authorities are collected.

Under the law as applied by the Federal courts, the defendant is liable if it could have avoided the injury by the exercise of ordinary care, only after actually discovering the perilous situation. Little Rock R. and E. Co. v. Billings, 173 Fed., 903; Note 55, L. R. A., p. 424; Coasting Co. v. Tolman, 139 U. S., 551; Newport News and M. V. Co. v. Howe, 52 Fed., 362; Buckworth v. Grand Trunk Western Ry., 127 Fed., 307; N. Y., C. and H. R. v. Kelly, 93 Fed., 745; Smith v. R. R. Co., 210 Fed., 414.

In Newport News and M. V. Co. v. Howe, supra, the plaintiff was a brakeman on a freight train; the train parted and the engine with the forward section of the train ran some distance ahead before the accident was discovered. The conductor on the rear portion of the train sent Howe ahead with a lantern to signal the engine and to give the engineer information as to the whereabouts of the rear cars. Howe went forward several hundred yards, sat down on the end of a tie, put his light down near him, and went to sleep with his arm.thrown over the rail.

The engineer, after running about 5 miles, discovered the parting, and started back with his engine and tender to take up the rest of the train. The fireman testified that when within a distance of between 100 and 200 feet from the point where Howe lay, he saw the reflection of the light from Howe’s lamp. He called to the engineer: “Look out! there they are,” meaning the rear portion of the train.

He looked again and saw on the other side of the track an object which he took to be the brakeman waiting to step on the engine. He crossed to the engineer’s side and then saw the prostrate man only 10 or *43915 feet from the approaching engine. He signaled the engineer, who applied the brake, but was.unable to stop before the wheels had passed over Howe’s arm and cut it off. '

A witness, McGuire, testified that the engineer did not look out of the cab window, and that if he had looked out he would have seen Howe and could have stopped the engine in time to avoid the accident. The rules of the company required the engineer, under these conditions, to signal his return by blowing his whistle at certain intervals, and not to run at a higher speed than 4 miles per hour. Both of these rules were being violated. Judge Taft, writing the opinion, says: “While an engineer who fails to keep a sharp lookout upon the track is wanting in due care to passengers and lawful travelers, because of the probability of danger to each from such failure, such conduct is not a want of due care with respect to a man asleep on the track, because of the presumption on which the engineer has a right to rely, that no one would be so grossly negligent in courting death. As applied to cases like the present, therefore, we believe the rule relied on by the counsel of plaintiff below should be construed to mean that the negligence of the plaintiff will be no defense, if the defendant, after he knev$ the peril of the plaintiff, did not use due care to avoid it.”

This case cites Coasting Co. v. Tolson, 139 U. S., 551, and referring to that case, Jtidge Taft says: “This would seem to show that, in the opinion of the Supreme Court, knowledge of plaintiff’s peril was required to make the rule applicable.”

In Little Rock R. and E. Co. v. Billings, supra, the Court, composed of Justices Sanborn, Polloclc, and Van Devanter, the latter of whom is now a justice of the Supreme Court of the United States, said: ‘“As deduced from the foregoing authorities, and many others that might be cited, this qualification may be stated as follows: A., who by his own negligent act or conduct has placed himself in a position of imminent peril, of which he is either unconscious or from which he is unable to extricate himself if conscious, may not be carelessly, recklessly, or wantonly injured by B., who, after he has discovered and knows the helpless and perilous condition of A., has it within his power to avoid doing him an injury by the exercise of reasonable care and diligence in the use of such instrumentalities as he can command; and the failure to exercise such reasonable care and diligence on the part of B. under such circumstances will constitute actionable negligence, rendering him liable in damages to A., notwithstanding the prior negligent act of A. in placing himself in position to receive the injury.”

To my mind, it is quite plain that in charging the jury upon the measure of the engineer’s duty the trial judge" should have followed the Federal and not the State rule.

*440Testing this, ease by our own State decisions, notably tbe unanimous opinion of tbe Court in Holland v. R. R., 143 N. C., 435, tbe plaintiff should not be permitted to recover.

MR. Justice "Wauicer concurs in tbis dissenting opinion.