#### F. M. TRANSOU, Administrator, v. DIRECTOR GENERAL et al.

(Filed 9 November, 1921.)

Evidence— Nonsuit— Trials— Railroads — Director General — War—Railroads — Questions for Jury.

In an action for a wrongful deatli, C. S., 160, against the Director General of Railroads and a railway company under Ms control as a war measure, there was evidence tending to show that a wood yard had its warehouse located about five feet from an industrial track of defendant, continuing from which was a platform extending up to within ten inches from the passing trains, and a truck several feet long and four feet wide, used for hauling the wood about, was customarily left there by day and night, when not in actual use, sometimes on the platform and at others on the ground. In pursuance of his duty and under the immediate order of his superior, the plaintiff’s intestate, a brakeman, was required, at night, to cross over between the cars of defendant’s freight train and to get upon the cars by end ladders thereon; and after a backing movement of the train, without light on the lead end of the car, was found dead, badly mutilated, at the end of a car where was also found the truck which had been caught on one of these ladders and splintered to pieces on an edge of the platform which had been broken in to by the impact. Viewing this evidence most favorably to the plaintiff, as required on a motion as of nonsuit: Held, the evidence was sufficient as to the Director General, but the motion was properly allowed as to the railroad company. Mo. Pac. R. R. Co. v. Ault, U. S. Supreme Court (opinion filed I June, 1921).

*403Appeal by plaintiff from Webb, J., at March Term, 1921, of Foesyth.

Civil action to recover damages under C. S., 160, for an alleged wrongful death.

Plaintiff’s intestate on the night of August 15, 1919, was brakeman on the Winston-Salem yards of the Southern Railway Company, which, at that time, was being operated by the Director General of Railroads.

Just north of Seventh street in Winston-Salem a switch track branched off from the main line of the railroad running south, and on the west side of this industrial track, as it was called, after it crossed Seventh street, was a woodyard building belonging to the defendant Hicks. This building was about eighteen feet high. Beside the switch track, for a part of the distance of this building, is a platform several feet long and about four feet high that extended up to within ten inches of passing trains. The part of the building where there was no platform stood about five feet from the track. Hicks’ woodyard used a truck for hauling wood around the yard and carrying wood to load and unload cars. The truck was several feet long and four feet wide. For some months this truck was left at night, and during the day when not in use, on the platform and on the ground beside the track within eight or ten inches of passing cars, and was so placed for some time before the death of plaintiff’s intestate.

There was a string of twelve cars on this industrial track, and at about 1 o’clock at night of August 15th the switch engine and crew were to get out two of these cars. The engine backed in, coupled up to this string of ears, pulled out and cut the twelfth car down the main line. The train was to then back into the switch with eleven cars remaining. Plaintiff’s intestate was ordered by the conductor in charge to set the brakes on the car placed on the main line and to come over and catch the backing train on the switch track, get on top, give, receive and pass signals to the engineman. There was no light on lead end of backing cars, though all members of the train crew had lanterns and it was a clear night. The ladders going to the top of all box cars at the front end as the cars were backing in were on the west side next to the woodyard building.

The deceased set the brakes on the ear on the main line and the train backed into the switch track. The tiuck was caught by a ladder of the backing train, torn to pieces, and parts of the broken truck were scattered along the track for fifteen or twenty feet. The top of the platform at one place was torn up and the deceased was found on the .ground beside the train, right at a car ladder that had parts of this broken truck hanging to it. His clothes were torn to pieces, his legs, arms, head and entire body bruised and broken, and he was covered with blood.

*404At tbe close of plaintiff’s evidence tbe court entered judgment of non-suit as to tbe Director General of Railroads and tbe Southern Railway Company, and from tbis ruling plaintiff appealed.

Raymond G. Parlcer and J. G. Wallace for plaintiff.

Manly, Ilendren & Womble for defendant.

Stacy, J.

Considering tbe evidence in its most favorable light for tbe plaintiff, tbe accepted position on a motion to nonsuit, we think tbe case should have been submitted to tbe jury. True, no one testified with exactness as to bow tbe deceased met bis death. But tbe objective and physical facts speak louder than witnesses. Can there be any doubt of tbe truth of tbe allegation that tbe moving train, tbe demolished truck and tbe torn up platform all played a part in producing tbe injury which resulted in Transou’s death? It would seem that an affirmative answer might be entirely permissible, and not altogether unlikely. At least, such is a reasonable inference arising from tbe attendant conditions and surrounding circumstances. Maybe tbe jury will take a different view of tbe matter, and maybe not. At any rate, upon tbe record- — it appearing that tbe deceased was at tbe time engaged in tbe discharge of bis duties as a brakeman — we think tbe question of liability is one for tbe jury under proper instructions from tbe court. But, of course, we express no opinion as to bow it should be fo.und. Southern Ry. Co. v. Diseker, 81 S. E., 269.

In Brown v. Missouri K. & T. Ry. Co., 212 S. W., 27, a case somewhat similar to tbe one at bar, tbe Supreme Court of Missouri states tbe law as follows:

> “Railroad companies will not be held to have exercised ordinary care to provide reasonably safe conditions for their employees to do their work when they permit standpipes, telegraph poles, fences, buildings, and other structures to be maintained so close to their tracks that employees being on tbe outside of their moving cars or engines, in tbe performance of their duties, are crushed by them,” and to which should be added, “unless due care is used and proper means are employed to prevent such injuries.”

To like effect are our own decisions. Heilig v. R. R., 152 N. C., 469; Williams v. R. R., 168 N. C., 363, and cases there cited. Tbe question has been so fully discussed in Williams v. R. R. that we deem it unnecessary to repeat here what has so recently been said there. See, also, Virginia Ry. Co. v. Halstead, 258 Fed., 428, and Sanderson v. Boston & M. R. R., 101 Atlantic, 40, cases directly in point.

With tbe case going back for a new trial, we refrain from ¿further discussion, as we do not wish to prejudice tbe rights of any of tbe parties.

*405Tbe judgment of nonsuit as to tbe Southern Railway Company will be sustained under authority of tbe recent decision of the United States Supreme Court in Mo. Pac. R. R. Co. v. Ault, decided 1 June) 1921, and reported in tbe Advanced Opinions of that Court at page 647, No. 16, 1 July, 1921. But as to tbe Director General of Railroads, tbe judgment will be reversed and a new trial ordered.

Affirmed as to tbe Southern Railway Company.

Reversed as to tbe Director General of Railroads.