#### J. L. SEARS v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 15 September, 1915.)

1. Railroads — Master and Servant — Negligence—Defective Coupler — Duty of Master — Inspection—Proximate Cause.

While engaged in the duty of cutting out a defective car in the defendant’s train, the plaintiff, an employee on the defendant’s local switch engine, was standing on the rear footboard of the locomotive, and, when it backed up to the car for the purpose of being coupled thereto by the plaintiff, his foot was caught between the bumpers of the car and crushed; *447there was proof that the injury was caused by a defect in the footboard of the engine and defects in the coupling, i. e., draw-heads, lock pins, and lift levers. Under these facts, an instruction was held correct to this effect, that if the jury should find that the coupler was not defective, they should answer the first issue “No”; and this would also he their answer to the issue if they found the coupler to be defective, but that the' defect was not due to the defendant’s negligence in failing to exercise proper care as to its inspection and repair, or that its negligence, if any, had not contributed proxinaately to the plaintiff’s injury.

2. Railroads — Interstate Trains — Interstate Commerce — Local Switching— Federal Employer’s liability Act.

A train made up and ready to start for its destination beyond the State, with steam up in the locomotive and the engineer in the cab, and moving under the usual signals from a switchman, who was one of the crew of a switching engine, engaged in cutting out a defective car from the train, is regarded as an interstate train, and the company is Hablé in damages for its negligent injury to the switchman, under the Federal Employer’s Liability Act, as the duty he was performing at the time, though he was engaged on a local switching engine, was one performed while he was employed in interstate commerce.

3. Same — State Statute.

In this action, which was brought by a switchman of the defendant’s train crew to recover damages for alleged negligence of the defendant in providing an improper coupler on a train made up and ready to start for a destination beyond the State, it is held that the question whether the train was an interstate one, or the plaintiff was at the time engaged in interstate commerce, is not material, it appearing that the alleged negligent wrong was committed since the enactment of ch. 6, Public Laws of 1913, which, in this respect, is substantially identical with the Federal statute.

4. Same — Contributory Negligence — Assumption of Risks — Trials—Issues.

When either the State or Federal statute is applicable in an action involving the liability of a railroad company to its employee, arising from its negligence, and the jury have found that the plaintiff, a switchman, was injured by a defective coupler on the train while in the performance of his duties, the defenses of contributory negligence and assumption of risks are eliminated, and issues thereon are immaterial, under our statutes or the Federal law.

5. Negligence — Surgical Operations — Proximate Cause — Trials—Evidence.

Where there is some evidence that, as the result of a personal injury, which was alleged to have been negligently inflicted by the defendant on its employee, two surgical operations were performed, and that the second one was made necessary by reason of the defendant’s negligence and as a proximate result thereof, it is proper for the trial judge to refuse to instruct the jury that in no view of the case was the defendant liable for the additional suffering, etc., caused by the second operation.

6. Master and Servant — Railroads—Negligence—Federal Employer’s liability Act — State Statute — Contributory Negligence — Assumption of Risks • — Trials—Instruction.

This action for damages for a personal injury to an employee, which was alleged to have been negligently inflicted by a railroad company, and caused by defective couplers on its cars, coming within the intent and meaning of both the Federal Employer’s Liability Act, the Defective Appliances Act, and also our statutes of 1913 and 1897, an instruction to *448the jury that if the injury was caused by a defective coupler, due to the defendant’s negligence, contributory negligence would not defeat his recovery, was correct; and the same would apply to assumption of risks under our law, as well as under the Federal statutes.

Appeal by defendant from Garter, J., at the May Term, 1915, of Edgecombe.

Civil action. The plaintiff was employed by the defendant as a switch-man, and, on 3 June, 1913, he was ordered as one of the switching crew to cut out a car in a train which had been made up at Rocky Mount, N. C., and was then ready to proceed on its journey to Florence, S. C. The car, on inspection, after the train had been made up, was found to be in bad condition, and for this reason was ordered to be cut out. While engaged in this duty, the plaintiff was injured, his left foot being crushed, and for the injury thus sustained he brought this action. In performing his duty, plaintiff was required to stand on the rear foot-board of the switching engine. Fourteen cars at the rear of the train were uncoupled and carried by the switching engine to a side-track. The engine then returned to the track where the other cars were standing and was backed to the end of the car which was to be cut out, and while attempting to make the couplers, between the engine and car, the plaintiff’s foot was caught between the bumpers of the engine and car and crushed, as above stated. It is alleged, and there was proof to sustain the allegation, that this injury to the plaintiff was caused by a defect in the footboard of the engine and defects in the coupling, that is, in the draw-heads, lock pins, and lift levers. Defendant alleged that the injury was caused by the negligence of the plaintiff in making the coupling, and especially in unnecessarily placing his left foot in a dangerous position, of which there was some evidence. Two surgical operations were performed on plaintiff’s foot. Defendant alleged, with proof to sustain the contention, that the second operation, when the leg was amputated, was not caused by its negligence, but by the unskillfulness of the first operation alone. There was evidence that the second operation was necessary, the surgeon, Dr. Carnegie, who performed it, testifying: “It was impossible for me to straighten the heel out so he could walk, and it necessitated putting the stump on the floor when walking, due to contraction of heel. He was bound to have suffered considerably, as there was no pad except a skin flap; it was impossible for that to give enough cushion to prevent him having pain.”

“Q. From what you say of the plaintiff’s injury, after examining the limb, do you find the second operation necessary? A. Yes; it was absolutely necessary.”

Defendant tendered in apt time the following issues:

1. Was the plaintiff injured by the negligence of the defendant company?

*4492. Did tbe plaintiff, by Ms own negligence, contribute to bis own injury ?

3. Did tbe plaintiff voluntarily assume tbe risk of tbe injury and burt sustained by bim?

4. Wbat damages, if any, is tbe plaintiff entitled to recover?

Tbe court refused to submit tbe issues, and defendant excepted.

Tbe jury returned tbe following verdict:

“Was tbe plaintiff injured by tbe negligence of tbe defendant company, as alleged in tbe complaint? Answer: Yes.”

“If so, wbat damages bas plaintiff sustained? Answer: $5,000.”

Defendant requested tbe following instructions:

1. In considering tbe question of damages, you will not consider at all tbe shock and effect due to tbe second operation, nor effect, pain, or suffering caused by or consequent upon tbe second operation.

2. While tbe law is that contributory negligence will not prevent a plaintiff from recovering for personal injury, tbe law does allow .and require tbe jury to diminish tbe damages in proportion to tbe amount of negligence attributable to tbe plaintiff in causing tbe injury.

Tbe court charged tbe jury as follows:

1. Tbe transaction in which tbe parties were engaged at tbe time of tbe alleged injury being an operation of interstate commerce, tbe rights and obligations of tbe parties are governed by tbe Federal law which imposes upon tbe defendant tbe absolute duty of equipping its engines and cars with automatic couplers and to exercise tbe degree of care which bas been heretofore defined to you as proper care, and to have and to keep such couplers in suitable repair and condition so they will at all times be automatic in their operation; that is to say, that they will couple by impact.

Defendant excepted, contending that this is not applicable to tbe facts.

2. You will consider tbe first issue without regard to any question as to whether the plaintiff was using bis foot or bis band or both, in trying to effect a coupling, if a defect in tbe engine coupler, which was due to tbe negligence of tbe defendant, contributed to tbe plaintiff’s injury as a proximate cause of it, as no contributory negligence of tbe plaintiff would defeat bis recovery.

Defendant excepted, contending that this is not applicable to tbe facts.

3. But even though you should find tbe defendant negligent in respect to tbe condition of tbe coupler, such negligence could not be deemed to have contributed to tbe plaintiff’s injury, if bis injury resulted from bis using bis foot in an operation not reasonably related’ to tbe alleged defective condition of tbe coupler on tbe engine, such, for instance, as pushing tbe draw-bead into tbe alignment with tbe coupler on tbe engine.

*450The defendant excepted to this, contending that the instruction is not applicable to the facts.

4. Nor can you take into consideration any pain or suffering or disability which may have resulted from the second operation and amputation, unless the jury are satisfied by the greater weight of the evidence that said second operation and amputation were necessary consequences of the injury alleged to have been sustained by him on account of the negligence of the defendant.

To this the defendant excepted, for that it was erroneous.

Judgment was entered upon the verdict and defendant appealed, after reserving its exceptions.

Gilliam & Gilliam and J ames H. Pou for. plaintiff.

John L. Bridgers for defendant.

Walxer, J.,

after stating the case: "We have arranged the statement of the case so as to present only so much of it as relates to the defendant’s assignment of errors. The court instructed the jury that if they did not find that the coupler was defective they would answer the first issue “No,” and if they found that it was defective, they would still answer the issue “No,” unless they also found that the defect was due to the defendant’s negligence in failing to exercise proper care in the inspection and repair of the coupler, which contributed proximately to the plaintiff’s injury. The record shows that “the court stated fully the contentions of the parties and reviewed the evidence bearing upon the same.”” There are four questions presented in defendant’s exceptions :

1. Did the court err in holding that this was a transaction of interstate commerce to which the Federal laws applied ?

2. Was it competent for the jury to consider additional suffering or shock caused by the second surgical operation ?

3. Was it proper for the court to refuse to submit the issues tendered by the defendant and thereby withdraw the questions of assumption of risk and contributory negligence from the jury?

4. Was there any affirmative error in the charge?

1. The first question may be well disposed of by a bare reference to the evidence. The witnesses, both for plaintiff and defendant, agreed in their testimony that the train in which was, what is called in the case, the “bad order car” had been made up, as an extra train, at South Rocky Mount, N. C., and was then ready to proceed to Florence, S. C., when the defect in one of its cars, there being forty-five in all, was discovered and that car was removed from the train. The engine which was to carry the train to Florence, S. C., had steam up and R. C. Garland, the engineman, was in the cab, and moved the train under signals from the *451plaintiff. Tbis would seem to properly characterize this train as one engaged in interstate commerce, and while the plaintiff was employed on a local shifting engine, any injury to him through the negligence of the defendant, while he was engaged in cutting out the “bad order car” from this train, is regarded in law as one received while he was “employed in such commerce.” This view of the question is sustained by Pedersen v. D. L. and W. Railroad Co., 229 U. S., 146, from which we extract the following principles:

1. Under the Federal law a right of recovery exists only where the injury is suffered while the carrier is engaged in interstate commerce and while the employee is employed in such commerce; but it is not essential that the coemployee causing the injury be also employed in such commerce.

2. One engaged in the work of maintaining tracks, bridges, engines, or cars iff proper condition after they have become, and during their use as, instrumentalities of interstate commerce, is engaged in interstate commerce, and this even if those instrumentalities are used in both interstate and intrastate commerce.

3. An employee carrying materials to be used in repairing an instrumentality of interstate commerce is engaged in such commerce, and, in this connection, it was held that such an employee carrying bolts to be used in repairing an interstate railroad, and who was injured by an interstate train, is entitled to sue under the Federal law in regard to an employer’s liability, it being the act of Congress of 1908, the true test' being: Is the work in question a part of the interstate commerce in which the carrier is engaged?

It follows, therefore, that if the train described in this case was engaged in interstate commerce, the act of the defendant in cutting out the “bad order car” was performed by him while employed in such commerce, for the two cases, in principle, at least, are clearly analogous. This will appear by a consideration of the language of the Court in the Pedersen case, where Justice Van Devanter said: “The statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct “any defect or insufficiency ... in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment”- used in interstate commerce. But independently of the statute, we are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements and the nature of each determined regardless of its relation to others or to the business as *452a whole. But this is an erroneous assumption. ... Of course, we are not here concerned with the construction of tracks, bridges, engines, or cars which have not as yet become instrumentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumentalities and during their use as such.”

The question then recurs: Was this train, at the time of the injury, being used in interstate commerce? We are of the opinion that an affirmative must be given to this question,.if we follow, as we are required to do, the decisions of the highest Federal court in N. C. Railroad Co. v. Zachary, 232 U. S., 248, 260, and the cases therein cited, especially St. Louis and San Franciso Ry. Co. v. Seale, 229 U. S., 156, 161. In the Zachary casa the engineer, after inspecting, oiling, firing, and preparing his engine for starting on a trip from Selma, N. C., to Spencer, N. C., was killed by an engine of defendant railroad company which was being negligently moved on one of its tracks and while he was crossing the track on his way to his boarding-house for supper. The train was to carry interstate cars, which came from Virginia, but they had not been coupled up at the time of the injury. It was held that he was at the time employed in interstate commerce and his case was governed by the Federal law, although he had mere prepared his engine and cars for the journey, but had not moved them from the station. In the case of Railway Co. v. Seale, supra, the injury occurred while the employee, who was a yard clerk, was engaged in the duty of inspecting and making a record of car seals and of checking the cars with the conductors’ lists. While he was going to a train which had come from another State to perform this kind of work, he was struck and fatally injured'by a switch engine, which, as was claimed, was being negligently operated by the defendant railway company. With reference to these facts the Court said in 229 U. S., at p. 161: “The interstate transportation was not ended merely because the yard was a terminal for that train, nor even if the cars were not going to points beyond. WTiether they were going further or were to stop at that station, it still was necessary that the train be broken up and the cars taken to the appropriate tracks for making up outgoing trains or for unloading or delivering freight, and this was as much a part of the interstate transportation as was the, movement across the State line,” citing McNeill v. Southern Railway Co., 202 U. S., 543, 559, and Johnson v. So. Pac. Co., 196 U. S., 1, 21.

If the breaking up of a train which has come from another State is a part of interstate commerce, we do not perceive why the making up of the train, its inspection and proper repair are not equally acts of interstate transportation. See, also, Railway Co. v. Lindsay, 233 U. S., *453 42. In III. Cent. Railroad Co. v. Behrens, 233 U. S., 473, while not deciding tbe question, it is strongly intimated, at tbe close of tbe opinion, that an employee engaged in work such as was done by tbe plaintiff in this case would be considered as engaged in interstate commerce and protected by tbe Federal Employer’s Liability Act and tbe Safety Appliance Act as well. Johnson v. Great Northern Ry. Co., 178 Fed. Rep., 643. We have again discussed this question somewhat at length, not only because of tbe zeal and earnestness with which tbe contrary view from ours was‘pressed upon our consideration, but because of its growing importance in a large number of eases. Our opinion is, though, that it is settled adversely to tbe defendant’s contention in Lloyd v. Railroad Co., 166 N. C., 24. Tbe two cases are. identical in their facts, so far as this point is concerned, and if Lloyd?s case stands tbe test of tbe higher court to which it has been carried by writ of error, it will be thoroughly decisive of the question we have discussed, and in respect to the view we have taken of it. But if the plaintiff was not, at the time of the injury to him, employed-in interstate commerce, as the alleged negligent wrong was committed since chapter 6 of Public Laws of 1913 was enacted (3 February, 1913), that is, in June, 1913, the ease is governed by the provisions of that law, which are identical, substantially, at least, with the Federal statute, and in this view the question may be considered of little practical importance, as was held in C. & N. Railway Co. v. Gray, 35 Supreme Court Beporter, p. 620. Under the State law, assumption of risk is not available to the defendant, as the injury was caused by a defect in appliances, and contributory negligence is treated in the same manner as under the Federal statute.

2. This also disposes of the third question we have stated, which involves the’ correctness of the ruling by which the court refused to submit the issues tendered by the defendant. The jury having found that the plaintiff was injured by a defective coupling, the defenses of assumption of risk and contributory negligence were eliminated, both under the Federal and State law.

3. The second question raised by defendant, that it was not; liable in damages for any increased injury resulting from the second surgical operation, is, we think, without merit, in the view we take of the record. The prayer of the defendant would require the court to instruct the jury that in no view of the case was it liable for such additional injury, whereas its liability depended upon whether the second operation was made necessary by defendant’s negligence as a proximate result thereof or was caused solely by the unskillful manner in which the first operation was performed. The court instructed the jury that it must have been a necessary consequence of the injury which resulted from the de*454fendant’s negligence. Defendant bas no reason to complain of tbis instruction, for it was as favorable to it as could be expected, and moreover it implied that if tbe additional pain and suffering were caused solely by tbe unskillfulness of tbe surgeon wbo performed tbe first operation, defendant would not be liable tberefor.

4. We can see no error in tbe charge of tbe court. It properly instructed tbe jury that if tbe injury was caused by a defect in tbe coupler due to defendant’s negligence, contributory negligence of tbe plaintiff would not defeat bis recovery. Tbis is correct, as it is so expressly provided in tbe Federal Employer’s Liability Act and our statute of 1913. And tbe same may be said as to assumption of risk, as tbe two defenses, in tbis respect, are subject to tbe same principle under tbe Federal statute, as will appear by reference to sections 3 and 4 of tbe said act of Congress. As to assumption of risk, similar provision is made by our law. Public Laws 1897, cb. 56 (Revisal, sec. 2646). Elmore v. R. R. Co., 132 N. C., 865.

After a careful review of tbe ease, we find tbat no error was committed by tbe court at tbe trial of tbe case.

No error.