#### LILLIE W. DAVIS, Administratrix, v. SOUTHERN RAILWAY CO. et al.

(Filed 28 May, 1918.)

1. Master and Servant — Employer and Employee — Federal Employer’s Liability Act — Contributory Negligence — Evidence—Nonsuit—Trials.

Contributory negligence is not a defense under tbe Employers’ Liability Act, and evidence thereof may not be regarded upon motion to nonsuit upon tbe evidence.

2. Railroads — Master and Servant — Employer and Employee — Negligence— Evidence — Nonsuit.

In an action' against a railroad to recover damages for tbe negligent killing of plaintiff’s intestate, there was evidence tending to show that as a messenger boy be was at tbe time delivering a message to defendant’s conductor at its locomotive, where tbe tracks were too close together to admit of passing trains for bis safety, and that be was struck by defendant’s locomotive running with tbe tender in front, without signals or warnings of its approach, or watchman or lookout properly placed. Held, sufficient to be submitted to tbe jury upon tbe issue of tbe defendant’s actionable negligence.

3. Instructions — Evidence— Negligence — Contributory Negligence— Proximate Cause — Appeal and Error.

Where there is evidence tending to show that tbe plaintiff’s intestate was killed by tbe negligence of tbe defendant railroad company in striking him with a locomotive moving along its track, without a proper lookout, or signals or warnings of its approach; and also evidence that tbe intestate, by tbe observance of proper care, could have, nevertheless, avoided tbe injury; Held,, reversible error for tbe court in bis charge to tbe jury to make tbe answer to tbe issue of negligence solely depend upon tbe question as to the proper lookout or warnings of tbe engine’s approach, and omit to charge them upon the principle of proximate cause.

4. Master and Servant — Employer and Employee — Federal Employer’s Liability Act — Damages—Contributory Negligence — Instructions.

An instruction to tbe jury for tbe admeasurement of damages under tbe Federal Employer’s Liability Act, where there is evidence of both *649negligence and contributory negligence, should follow tbe rule of proportion specified in tbe statute, or refer to tbe occasion for contrasting tbe negligence as a means of ascertaining wbat proportion of tbe full damages should be excluded from tbe recovery; and leaving it to tbe jury to determine otherwise tbe reasonableness of tbe deduction, is reversible error.

Appeal by defendants from Ferguson, J., at tbe February Term, 1918, of BUNCOMBE.

Tbis is an action brought by tbe plaintiff administratrix against tbe defendant for tbe recovery of damages on account of tbe alleged negligent killing of plaintiff’s intestate, Julian Carr Davis, a sixteen-year-óld boy, in tbe yards of tbe defendant at Asheville on 18 November, 1916. Plaintiff’s intestate was a messenger boy of tbe defendant, and was charged with tbe duty of delivering messages from tbe yardmaster’s office to various employees of tbe defendant in tbe railroad yards.

Tbe evidence offered by tbe plaintiff tended to prove that at tbe time plaintiff’s intestate was killed by the negligence of tbe defendant be was standing between two parallel tracks of defendant, and bad just banded Conductor Black a message pertaining to tbe movement of a certain car, and “tbe boy and Black were reading tbe message there” when be was knocked down and killed by an engine going east. Tbe evidence further tended to show that at tbe exact point where tbe boy was struck, parallel tracks of tbe defendant were so close together that tbe boy did not have room to perform bis duties with safety, and that be did not have room to get out of tbe way of tbe engine wbicb was backing east without being' injured by tbe engine and ears wbicb were traveling west on tbe parallel track at tbe time be was struck, and that no signal or warning was given by tbe trainmen on tbe engine, and. that no one was on tbe front of tbe engine to give warning or to keep a lookout. Tbe train wbicb killed tbe deceased was running with tbe tender in front of tbe engine so tbe engineer could not see tbe deceased.

Tbe evidence for tbe defendant tended to prove that there was ample space between tbe tracks for one to stand in safety with trains passing on both of them;- that tbe train going west bad passed tbe deceased before be was struck, and that tbe deceased was looking in tbe direction of tbe train wbicb killed him.

There was a motion for judgment of nonsuit, which was denied, and tbe defendant excepted.

His Honor charged the jury on tbe issue of negligence as follows: “I charge you that it was tbe duty of tbe defendant company, by its engineer or others, to keep a lookout over and along tbe track where it was moving its engine, and that if it failed to do so, it would be negligent, and it would be your duty to answer that issue ‘Yes.’ ” Tbe defendant excepted.

*650Also on the issue of damages as follows: “Now, when you come to consider that, it would be your duty to take into consideration as part of the evidence of his negligence, his age, the time that he had been engaged, his acquaintanceship with the engines with which he was surrounded, the extent of the business he was doing at the time, what there was to attract his attention, what there was to keep him from observing the necesSary things to do in order to keep him from avoiding an injury; and you will also take into consideration the character of the morning and the distance he might have seen the train or engine approaching, if he could have seen it; and then you will measure the damages by such reduction as you think proper under all the circumstances.” The defendant excepted.

The jury returned the following verdict:

1. "Was the plaintiff’s intestate, Julian Carr Davis, -engaged in interstate commerce at the time the said Julian Carr Davis was injured and killed ? Answer : “Yes.”

2. Was the defendant Southern Railway Company engaged in interstate commerce at the time the said Julian Car Davis was injured and killed? Answer: “Yes.”

3. "Was the plaintiff’s intestate, Julian Carr Davis, injured and killed by the negligence of the defendant Southern Railway Company? Answer: “Yes.”

4. Did the plaintiff’s intestate, Julian Carr Davis, by his own negligence, contribute to his injury and death? Answer: “Yes.”

5. "What amount, if any, is the plaintiff entitled to recover? Answer: “$4,000.”

Judgment was rendered in favor of the plaintiff and the defendant appealed.

G. W. Garland and Curtis & Varnon for plaintiff.

Martin, Rollins & Wright for defendant.

AlleN, J.

Contributory negligence is not a defense in an action to recover damages on account of negligence under the Employer’s Liability Act, and it cannot, therefore, be taken into consideration on a motion for judgment of nonsuit.

We can deal only with the evidence relied on to prove the negligence of the defendant, which must be construed most favorably for the plaintiff, and when so considered, we are of opinion evidence was introduced on the trial fit to be considered by the jury.

The evidence tends to prove that the deceased was where he-had the right to be in the performance of a duty; that he was engaged in reading telegrams; that he was standing between two parallel tracks close to-*651getber; that a train was passing along one of these tracks going west and that the train which killed the deceased passed on the other going east; that the place where the deceased was standing was dangerous, and one could not stand there with trains passing on both tracks without being struck; that the train was running with the tender in front of the engine so that the engineer could not see ahead; that there was no watchman on the front of the train, or if there was, he was not keeping a lookout; that no signal was given of the approach of the train, and the inference is permissible that if a lookout had been maintained or a signal given, the deceased would have been warned of his danger, or the train would have been stopped in time to avoid the injury.

The evidence is stronger for the plaintiff than in Lassiter v. R. R., 133 N. C., 244, in which a judgment of nonsuit was reversed on appeal, in that the employee here was in a more dangerous situation, which could have been readily observed, and this is the important and material fact which distinguishes this case from Aerkfetz v. Humphrey, 145 U. S., 418, an authority relied on by the defendant.

In the Lassiter case the deceased, “a freight conductor in the defendant’s service, was standing between the main track and a sidetrack in the defendant’s yard in the town of Henderson, giving instructions to the hands on top of the box cars as to the movements of his train. The train of which he was in charge was on the main track and backing towards him. He was looking at it as he gave the signals to the hands. On the sidetrack a shifting engine with two box ears was moving backwards at the rate of about four miles an hour in the direction of the intestate, his back being turned to the shifting engine. When the box cars attached to the shifting engine were within about twenty steps of the intestate he stepped from a safe place between the track upon the sidetrack, with his back towards the shifting engine, and when engaged in giving orders to the men on the top of the box cars of his own train he was run over and killed by the box cars attached to the shifting engine. A person, Henry Thomason, who chanced to be passing by, endeavored to attract the attention of the intestate by hallooing to his peril, but to no avail. There was no watchman on the box cars of the shifting engine. The engineer, from his cab, could not have seen the deceased on the sidetrack. There was no evidence that the bell was not ringing, nor any that the whistle was not sounding.”

The court held that the question of the defendant’s liability ought to have been submitted to the jury, and among other things, said: “It is the duty of railroad companies to keep a reasonable lookout on moving trains. WRen Thomason saw the intestate step upon the sidetrack the end of the box car attached to the shifting engine was twenty steps from him and the cars were moving at the rate of four miles an hour. *652Tbe same witness said that tbe intestate bad time to bave gotten off if be bad beard tbe witness wben be ballooed to bim. Tbat evidence was competent and fit to bave been submitted-to tbe jury upon tbe question of tbe last clear cbance of tbe defendant — tbat is, wbetber if botb tbe plaintiff and tbe defendant bad been negligent tbe defendant could bave prevented tbe death of tbe intestate by tbe use of means at band or tbat reasonably ought to bave been at band.” . . .

“In tbe present case it was of tbe utmost importance for tbe defendant to bave kept a lookout other than tbat which the engineer ordinarily might keep, for tbe engineer here could not see in front of bim 'by reason of tbe box cars, although tbe track was straight for some distance, and tbe view but- for tbe box cars unobstructed.”

This case has been.ápproved ten or twelve times, tbe latest cases referring to it being Talley v. R. R., 163 N. C., 572; Meroney v. R. R., 165 N. C., 612; Norman v. R. R., 167 N. C., 538.

Tbe charge on tbe issue of negligence is erroneous. It is correct in so far as it imposes on tbe defendant tbe duty of keeping a lookout, but it in effect ignores tbe evidence of tbe defendant tending to prove tbat tbe deceased was looking in tbe direction of tbe train as it approached; tbat be was in a place of safety; tbat there was ample space between tbe track for one to stand without being injured with trains passing on botb tracks; tbat tbe train going west bad already passed tbe deceased; tbat if a lookout bad been maintained there was no need of giving- a signal, and no reason to stop because be was in no danger, and it omits proximate cause as a fact to be found under tbe third issue.

A similar instruction has been condemned at this term in Ware v. R. R., and in Lee v. Utilities Co., in which tbe authorities are reviewed, tbe Court saying in tbe last case: “Tbe court failed to tell tbe jury tbat the. negligence of defendants must bave been tbe proximate cause of tbe injury in order to be actionable, so tbat tbe issue could be answered 'Yes.’ ”

“In order to establish actionable negligence, tbe plaintiff is required to show by tbe greater weight of tbe testimony, first, tbat there has been a failure to exercise proper care in tbe performance of some legal duty which tbe defendant owed tbe plaintiff, under tbe circumstances in which they were placed, proper care being tbat degree of care which a prudent man should use under like circumstances and charged with a like duty; and second, tbat such negligent breach of duty was tbe proximate cause of tbe injury — a cause tbat produced tbe result in continuous sequence and without which it would not bave occurred, and one from which any man of ordinary prudence could bave foreseen tbat such a result was probable under tbe facts as they existed. Ramsbottom v. R. R., 138 N. C., 38.”

*653There is also error in the instruction on the issue of damages. R. R. v. Tilghman, 237 U. S., 500.

In the Tilghman case the Court, after holding that “where the casual-negligence is attributable partly to the carrier and partly to the injured employee, he shall not recover full damages, but only a diminished sum bearing the same relation to the full damages that the negligence attributable to the carrier bears to the negligence attributable to both; the purpose being to exclude from the recovery a proportional part of the damages corresponding to the employee’s contribution to the total negligence” deals with the instruction Under review as follows:

> “At the trial the court instructed the jury that if they found the plaintiff was injured through the concurring negligence of the railway company and himself, they should determine the full amount of damages sustained by him, ‘and then deduct from that whatever amount you think would be proper for the contributory negligence.’ This was reiterated in different ways and somewhat elaborated, but the fair meaning of all that was said was that a reasonable allowance or deduction should be made for the plintiff’s negligence and that it rested with the jury to determine what was reasonable. No reference was made to the rule of porportion specified in the statute or to the occasion for contrasting the negligence of the employee with the total casual negligence as a means of ascertaining what proportion of the full damages should be excluded from the recovery. On the contrary, the matter of diminishing the damages was committed to the jury without naming any standard to which their action should conform other than their own conception of what was reasonable. In this there was a failure to give proper effect to the part of the statute before quoted.' It prescribes a rule for determining the amount of the deduction required to be made and the jury should have been advised of that rule and its controlling force.

> “It results that the objection to the instructions upon this subject was well taken and should have been sustained.”

The error pointed out is present in the instruction, to which the defendant excepts, and the two cases cannot be distinguished.

New trial.