#### MATTHEW T. LAMM v. ATLANTIC COAST LINE RAILROAD COMPANY et al.

(Filed 1 March, 1922.)

Bailroads — Negligence—Evidence—Nonsuit—Statutes—Comparative Neg- ' ligence. .

In an action to recover damages of a railroad company for negligent injury caused to its employee, there was evidence tending to show that plaintiff, while performing his duty as a switchman, coupled a car attached to defendant’s locomotive, while not in motion, and the injury was caused by the sudden movement of the locomotive by the engineer, without a signal from the plaintiff, contrary to custom or practice, and crushed the plaintiff’s foot between the bumpers on the cars, causing the injury complained of: Meld, though there was evidence of contributory negligence, its establishment would not be a complete defense, under the provisions of our recent statute, C. S., 3467, applying the principle of comparative negligence in such cases; and upon a motion to nonsuit, evidence that the engineer properly acted on the signal of another employee will not be considered.

Appeal by defendant from Allen> J., at the October Term, 1921, of Nash.

The action is by plaintiff, an employee of defendant company, in charge and control of codefendant, the Director General, of Railroads, to recover damages for serious and permanent physical injuries caused by the alleged negligence of defendants in the operation of a switching, engine, in connection with which plaintiff, as employee and in the line of his duty, was presently engaged in coupling cars on a spur track 'of defendant railroad, running into the yards of Hackney Brothers. There was denial of liability and plea of contributory negligence, and on issues submitted as to liability of Director General, the jury render a verdict:

1. That the injury was caused by the negligence of defendant.

2. That plaintiff was guilty of contributory negligence.

3. Assessing plaintiff proportionate damages.

Judgment on the verdict for plaintiff and defendant, the Director General appealed, assigning for error chiefly the refusal of his motion to-nonsuit.

B. B. Grantham, and J. S. Harming for plaintiff.

F. S. Spruill for defendant.

Hoke, J.

There were facts in evidence on part of plaintiff tending to show that on or about 28 July, 1918, plaintiff, a switchman in employment of defendant company, with others of the switching crew and a switching engine of defendant companywere engaged in coupling some *75ears on a spur track of tbe company, running into tbe yards of Hackney Brothers; that tbe engine was being operated at tbe time by one A. L. Darden, an engineer also in employ of defendant, and as said engine was backed against tbe first of tbe cars, plaintiff, by direction of tbe yard conductor, and in tbe line of bis duty made the coupling, and while tbe engine was standing still, plaintiff endeavored to pass between tbe engine and tbe car, by getting over tbe drawbead, and swung himself up for the purpose, when the engine, without further signal, was suddenly moved towards tbe car, causing plaintiff to fall, and whereby plaintiff’s foot was caught between tbe bumpers and crushed, causing the injuries as stated; that by custom and practice, after tbe coupling was made, tbe switchman was to give a signal to this effect, and the engineer moved tbe engine further as per signal, and on this occasion plaintiff bad given no signal for tbe engine to move, and at tbe time was endeavoring to pass between tbe engine and tbe car, partly to avoid being struck and rolled up by a brick wall very near the track, and also to be in a position to properly signal tbe engineer for some further couplings then to be made.

There was testimony on part of defendant tending to show that the engineer had moved bis engine towards tbe car at tbe time, in-response to a proper signal from another switchman, and that be was free from blame in tbe matter, but this may not be considered on a motion to nonsuit, and accepting tbe testimony of plaintiff as true, tbe established position on a motion of this character, it clearly permits if it does not require tbe inference that plaintiff was injured as tbe proximate result of defendant’s negligence. It was earnestly urged for defendant that judgment of nonsuit should have been allowed because tbe negligence of plaintiff was clearly the proximate cause of tbe injuries received by him, citing and commenting chiefly on Dermid v. R. R., 148 N. C., 180. But the position is not now available in support of a motion to nonsuit, by reason of tbe statute applicable, C. S., 3467, and which provides in part “that in all actions hereafter brought against any common carrier by railroad to recover damages for personal injuries to an employee, or where such injuries have resulted in bis death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but tbe damages shall be diminished by tbe jury in proportion to tbe amount of negligence attributable to tbe employee,” etc.

This statute, enacted at tbe session of 1913, is controlling on tbe facts of the present record, and by its express provisions, contributory negligence on tbe part of tbe employee, though established, as it was in this instance, no longer bars a recovery, but is to be considered only on tbe question of damages, an effect that was no doubt properly allowed it on tbe trial, as no exception appears to tbe determination of that issue.

*76The authority chiefly commented by counsel, Dermid v. R. R., supra, was a case decided before the enactment of the statute referred to, and at a time when contributory negligence in this jurisdiction, where same was established, constituted a complete defense. We find no error in the record, and the judgment for plaintiff is affirmed.

No error.