#### GASTON WYNE v. ATLANTIC COAST LINE RAILROAD COMPANY and HINES, Director General.

(Filed 26 October, 1921.)

1. Railroads — Employer and Employee — Master and Servant — Personal Injury — Negligence—Evidence.

Where there is evidence that the plaintiff was injured while discharging his duties to the defendant railroad company, in carrying freight from its train to a depot platform by a passenger train running between another passenger train, discharging passengers at the depot, contrary to the rules of the company, and coming up, without signal or other warning, where the plaintiff’s view was obstructed, and under noisy surroundings, which tended to prevent the plaintiff’s hearing its approach, it is sufficient to be submitted to the jury upon the issue of defendant’s actionable negligence.

3.Same — Contributory Negligence.

Where an employee on a freight train engaged in his duties as such, under the immediate direction of his superior, has been injured by a collision with the defendant’s passenger train under evidence tending to show that the negligence of the defendant proximately caused the injury complained of, the question of the plaintiff’s contributory negligence is one for the jury, upon the issue, and a motion to nonsuit should not be granted upon that ground alone.

3. Same — Questions for Jury — Trials.

The principle that requires one, before entering on a railroad track, to look and listen for approaching trains may be so qualified by the facts and circumstances of the particular case, when the defendant’s negligence has been shown, as to require the question to be submitted to the jury upon the issue of contributory negligence, especially where the plaintiff, an employee, at the time was acting within the scope of his duty to the defendant, under the immediate order of his superior.

4. Evidence — Nonsuit—Contributory Negligence — Questions for Jury— Measure of Damages.

Both under our statute and the Federal law, an employee of a railroad company is not barred of his recovery for damages from a personal injury negligently inflicted on him, because of his contributory negligence, such being considered only upon the quantum of damages he may recover, when the defendant’s negligence has been properly established; and a motion for nonsuit in defendant’s behalf may not be granted.

5. Statutes— Federal Law— Controlling Decisions — Parties — Director General — Verdict Set Aside.

The decision of the Supreme Court of the United States controls in the interpretation of Federal laws, and, thereunder, an action against a railroad and the Director General to recover for a personal injury inflicted upon an employee of a railroad, under Government operation, improperly joins the railroad company, and the action as to it will be set aside on appeal.

*2546. Judgments — Courts—Law and Equity — Parties— Railroads— Director General — Dismissal of Action — Affirmance—Appeal and Error.

Under our present code of civil procedure, administering both principles of law and equity in the same court, with express statutory provision that judgment may be given for or against several plaintiffs or defendants in the same action, determining the ultimate rights of all parties between themselves, leaving the action to be proceeded with whenever a several judgment is proper, it is held that where an action is properly brought against the Director General of Railroads, under Government management, and against the railroad company, and a judgment has been obtained against both, the setting aside on appeal of the judgment against the railroad company and affirming it as to the Director General does not necessarily prejudice any of the rights of the latter, especially does it not do so when it appears that separate issues have been submitted as to each, and answered adversely to each of them by the jury.

7. Appeal and Error — Presumptions—Railroads—Director General — Dismissal as to One Party — Prejudice—Judgments.

The presumption on appeal to the Supreme Court is against error committed in the Superior Court, and it is accordingly held in this case that a judgment against the Director General óf Railroads and a railroad under Government control at the time of the negligence alleged in the action must be dismissed as to the railroad company and affirmed as to the Director General of Railroads.

Appeal by defendants from Daniels, J., at tbe February Term, 1921, of Cumbekland.

Civil action to recover damages for personal injuries, caused by alleged negligence of defendants, while plaintiff was engaged at bis work as brakeman on a freight train on road of defendant company and while same was being operated by the government of United States under the supervision and control of W. D. Hines, Director General. A motion to dismiss the action as to the railroad corporation was overruled and defendant company excepted. There was denial of liability and plea of contributory negligence by defendant, and on evidence offered the jury rendered the following verdict.:

“1. At the time the cause of action alleged in the complaint arose, was the possession, operation and control of the Atlantic Coast Line Railroad Company exercised by the Director General of Railroads under the proclamation of the President of the United States ? Answer: Yes.

"2. Was plaintiff injured by the negligence o'f the agents, servants or employees of Federal Administration, acting through the Director General of Railroads ? Answer: Yes.

“3. Was plaintiff injured by the negligence of the defendant Atlantic Coast Line Railroad Company? Answer: Yes.

“4. Did the plaintiff by his own negligence contribute to his injury? Answer: No.

*255“5. What damage, if any, is plaintiff entitled to recover ? Answer : $6,000.”

■ Judgment on verdict for plaintiff, and defendant appealed, assigning error.

Sinclair & Dye for plaintiff.

Bose & Rose for defendant.

Hoiee, J.

The facts in evidence tended to show that on 15 June, 1918, plaintiff was employed and working as a brakeman on a freight train on defendant road, and while engaged in carrying freight from his train, then on the ground at Kenly, N. C., to the station warehouse of the defendant road, was run over by a passenger train on the road going south and received painful and protracted physical injuries “to his great damage,” etc. That at the time and place of his injury the freight train on which plaintiff was working was on a pass track of defendant company lying to the east and between that and the company station and freight depot, on the west there were two main line tracks and a station or warehouse track lying next to the buildings. That the passenger train going north was at the time on the yard on the main line track lying next to the freight train, and there was evidence permitting the inference that the train was then engaged in receiving and discharging passengers; that on the warehouse track, and to the north there were freight cars standing, and which to a great extent obstructed the view in that direction. That when plaintiff had placed a load of freight on the platform of the warehouse and under the direction of his conductor was going back across the track to couple up his train, the passenger train of defendant going south came on the yard and struck plaintiff, knocking him down and dragging him some distance, causing the injuries complained of; that the train came without signal or warning of any kind and was in violation of a special rule of the defendant put in evidence to the effect “that trains must use caution in passing a train receiving or discharging passengers at a station, and must not pass between it and the platform at which passengers are being received or discharged.” It was further shown that in crossing the track plaintiff passed just in front of No. 80, the passenger train going north, and that the noise of the train was such as to prevent or very much interfere with hearing the approach of the incoming train. It is stated also as an admission of record that the Atlantic Coast Line Eailroad at the time was being operated by the Federal Administration. On this a sufficient statement to a proper apprehension of the question presented, the motion of nonsuit, in our opinion, was properly overruled, it appearing that a south bound train without any warning ran in on a main line of the *256company’s track where divers persons were not unlikely to be at the time, and this, too, in violation of a rule of the company “that no train should run into a station yard between the station and a train engaged at the time in receiving or discharging passengers.” Both were breaches of a duty very likely to result in harm and leading directly to the plaintiff’s injury. And as to the conduct of the plaintiff, usually considered on the issues as to contributory negligence, in Sherrill v. R. R., 140 N. C., 252, it was held that “while one who enters on a railroad track is required to look and listen for trains that may be approaching, when negligence of the defendant has been established, the facts and attendant circumstances may so qualify the obligation as to require that the question of contributory negligence should be left to the j'ury,” a position that is particularly insistent when one is upon the railroad track in the line of his duty, and in this instance acting under the immediate direction of his conductor. The position so stated has been again and again approved in our decisions. Lubberloh v. R. R., 172 N. C., 118; Penninger v. R. R., 170 N. C., 475; Johnson v. R. R., 163 N. C., 431; Fann v. R. R., 155 N. C., 136; Inman v. R. R., 149 N. C., 126; Wolfe v. R. R., 154 N. C., 569. Under these authorities and the principle they uphold and illustrate, it is clear, we think, that the question of contributory negligence should be referred to the j'ury, it appearing that plaintiff in the line of his duty and acting at this time under the immediate orders of the conductor, was endeavoring to cross the track; that his view as he approached was shut off to a great extent by box cars standing on the warehouse track; that the incoming train ran into the yard without signal or warning of any kind, and the noise of the passenger train on the other track was such as to prevent taking note of the incoming train. A full discussion of the question, citing most of the authorities on the subj'ect in our own court to the time were approved in Farm’s case, supra, and the decision in Wolfe v. B. B., Inman v. B. B., are especially pertinent to the facts appearing in the present record. Even if contributory negligence should have been made to appear, both under Federal and State law, it would not avail defendant on motion for non-suit, the only exception urged before us on the general question- of liability. It has been held, in several of our cases construing the Federal Statutes under which the government had taken over this and other roads, that both the Director General and the railroad corporation are liable for an injury under the circumstances presented in the record, and his Honor below in accord with these cases very properly entered judgment against both defendants. Since this case was tried the Supreme Court of the United States, the final authority on the interpretation of Federal law, has held that under the Federal statutes applicable and the various orders of those in control of the roads thereunder, particularly *257General Order No. 50, judgment could not be properly bad against tbe corporation. Missouri Pacific Railroad Co. v. Ault, 68 L. Ed., Current Supreme Court advance opinions, 647. In deference to tbis authoritative ruling, we must direct that tbe judgment against tbe Atlantic Coast Line be set aside, but we do not approve tbe position further insisted on that, for tbis reason, tbe entire judgment must be nullified. We were referred to several of tbe older decisions of our court to tbe effect that “a judgment is to be regarded as an entirety, and that it cannot be affirmed as to one or more defendants and reversed as to tbe others,” citing Davis v. Campbell, 23 N. C., 482, etc. But if that and other like decisions could be considered as applicable to tbe facts of tbe record under tbe former law, they do not prevail under our present system of procedure, wherein tbe same court administers principles of both law and equity, and further there is express statutory provisions “That a judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may determine tbe ultimate rights of tbe parties on each side, as between themselves and in an action against several defendants tbe court may, in its discretion, enter judgment against one or more of them, leaving tbe action to proceed against tbe others, whenever a several judgment is proper.” O. S., sec. 602, sub-secs. 1 and 3, and further, see section 1412: “In any case tbe court may render such sentence, judgment and decree as on inspection of tbe whole record it shall appear to them ought in law to be rendered thereon.” There is, therefore, no objection as a conclusion of law to tbe entry of several judgment against one of tbe defendants while tbe other has been relieved, unless it appears that tbe liability of tbe codefendants are mutually dependent tbe one upon tbe other, or that tbe rights of tbe defendant who is held has been in some way prejudiced by tbe presence of tbe other in tbe trial of tbe cause. There is, however, a presumption against error, and not only does it not appear that tbe rights of tbe Director General have been prejudiced by tbe presence of tbe corporation, but a perusal of tbe record will disclose that on tbe facts in evidence tbe question of liability was determined by tbe jury on a separate issue and entirely as between plaintiff and tbe Director General in tbe present control and management of' tbe road, and tbe liability of tbe corporation also on a separate issue was ruled by tbe court as a conclusion of law from tbe verdict against, tbe Director General. Tbe trial as to him, therefore, could in no way have been prejudiced by tbe presence of tbe corporation, nor is there any reason in law or fact why, under our present system, a several judgment may not be upheld. Tbe admission of tbe rule as to tbe approaching of an incoming train alleged to have been violated, was not. objected to nor does it appear as an assignment of error, and is evidently *258'a rule under wbicb tbe road is being presently operated. In this aspect of the matter the request of the plaintiff to a several judgment is fully upheld in Kimbrough v. R. R., ante, 234.

For the reasons stated, the judgment against the Atlantic Coast Line Railroad will be set aside and action dismissed and the judgment against the Director General is affirmed.

Modified and affirmed.