#### MARY STRUNKS, Administratrix of JOHN M. STRUNKS, v. SOUTHERN RAILWAY and JOHN BARTON PAYNE, Director General of Railroads.

(Filed 20 February, 1924.)

1. New Trials — Partial New Trials — Issues—Appeal and Error.

Where damages are sought in an action against a carrier for a personal injury involving the issues of negligence and assumption of risks, and the Supreme Court, on appeal, has granted a new trial only on the issues of damages, these issues are properly refused by the judge upon the retrial of the case, the remedy being by a petition to rehear in the Supreme Court under its Rules of Practice.

2. Same — Damages — Evidence — Carriers — Railroads — Federal Employers’ Liability Act.

Under the Federal Employers’ Liability Act, contributory negligence is considered in diminution of the employee’s damages for personal injury alleged to have been caused by the defendant’s negligence; and upon a new trial awarded by the Supreme Court upon the issues of damages alone, it is reversible error for the trial judge to exclude evidence of this character under the defendant’s objection, when confined to this phase of the controversy, the amount of the damages being for the jury to determine upon conflicting evidence.

Apueal by defendants from Harding, J., at April Term, 1923, of Guilfoed.

8. B. Adams and B. 0. Strudwiclc for plaintiff.

Wilson <& Frazier for defendants.

Adams, J.

Tbis case was before tbe Court at tbe Fall Term of 1922. 184 N. C., 582. At tbe first trial in tbe Superior Court tbe issues addressed to negligence, assumption of risk, and damages were answered in favor of tbe plaintiff, tbe recovery being apportioned to tbe widow and tbe three surviving children. Gulf, etc. R. R. Co. v. McGinnis, 228 U. S., 173, 176; 57 Law. Ed., 785, 787; Central Vermont R. R. Co. v. White, 238 U. S., 507; 59 Law. Ed., 1443; Horton v. R. R., 175 N. C., 472, 488; Moore v. R. R., 179 N. C., 637. On appeal, a new trial was awarded as to tbe four issues relating to damages but not as to tbe others. Tbe case was tried tbe second time in tbe Superior Court at tbe April Term of 1923, and tbe issues as to damages were again answered in favor of tbe plaintiff, tbe apportionment being made in tbe same manner but not in tbe same amount as at tbe former trial. Upon tbe verdict, judgment was rendered for tbe .plaintiff, and tbe defendants appealed.

Tbe first assignment of error called in question bis Honor’s refusal to submit to tbe jury upon tbe second trial issues directed to tbe defend*176ant’s negligence and tbe intestate’s assumption, of risk (assignments 1 and 2). These issues were considered and answered by tbe jury upon tbe first trial, and as to them, a new trial was denied on appeal. Tbe defendants have evidently overlooked tbe fact that tbe new trial was to be restricted to tbe question of damages, and have disregarded tbe preliminary requisites of a petition to rehear. Rules of Practice in tbe Supreme Court, 185 N. C., 803. Tbe first and second assignments of error are therefore without merit and must be overruled. Tbe third assignment is more serious.

Tbe plaintiff examined 1. W. Carr, who bad testified on tbe former trial, and upon tbe cross-examination of this witness tbe defendants offered to prove tbe facts to which he had previously testified; but upon tbe plaintiff’s objection this evidence was excluded. The witness would have answered as appears in his testimony on pages 13-22 of the printed record of the first trial. The ground of exclusion was this: “It (the proposed testimony) appeared upon tbe issue of negligence, and tbe court, having declined to submit the issue of negligence, held that tbe evidence was immaterial.” The same ruling was made with respect to the testimony of M. M. Smith.

His Honor was correct in refusing to admit the proposed evidence on the issue of negligence; but tbe several issues as to damages were yet to be tried, and evidence tending to show contributory negligence was competent in diminution of damages. U. S. Compiled Statutes, sec. 8659; N. and W. Ry. Co. v. Earnest, 229 U. S., 114; 57 Law. Ed., 1096; Ill. Gen. Railroad Co. v. Skaggs, 240 U. S., 66; 60 Law. Ed., 529; Horton v. R. R., supra.

At tbe first trial tbe jury were instructed that tbe damages should be diminished in proportion to tbe negligence attributable to tbe plaintiff’s intestate, and upon tbe second hearing the defendants offered evidence which they say would have entitled them to a similar instruction. If, then, tbe excluded evidence would reasonably have tended to establish contributory negligence it should have been admitted. After bestowing upon the record a careful examination we have concluded that tbe rejected evidence includes circumstances which the jury should have been permitted to consider on the question whether the deceased exercised due care for his personal safety. If” believed, this evidence tended to show that the intestate on tbe occasion of his injury made use of a brake stick by putting it into the brake wheel for the purpose of applying additional pressure; that there was a rule of the railroad company prohibiting tbe use of such a stick by brakemen; that tbe deceased provided his own stick, and that it was not furnished by tbe company; that the brakes could be applied without the use of a stick, and that the stick used by intestate was obviously defective. The de*177fendants specifically pleaded contributory negligence; and although they denied that the stick was defective, they further alleged that if it was, its defect was known to the deceased, and that his negligent use of the stick was the proximate cause of his injury. To be sure there was evidence to the contrary, but the conflict of testimony called for the intervention of the jury. White v. White, 15 N. C., 257; Mitchell v. R. R., 124 N. C., 236; Powell v. R. R., 125 N. C., 371.

On the former appeal the Court said: “There must be another trial, but only on the issue as to damages.” If by his own negligence the plaintiff’s intestate contributed to his injury and death, what damages may be recovered? If the causal negligence is partly attributable to him and partly to the defendant, he shall not recover full damages, but only a proportional amount, bearing the same relation to the full amount as the negligence attributable to the defendant bears to the entire negligence attributable to both. N. & W. R. R. v. Earnest, 229 U. S., 114; 57 L. Ed., 1096. In order to determine the relation which the negligence attributable to the defendant bears to the entire negligence attributable to both (if the intestate was negligent), evidence of the defendant’s negligence and of the intestate’s contributory negligence may be introduced and considered, although the issue of negligence was determined against the defendant on the former trial and need not again be formally answered. Such evidence may be necessary to determine the quantum of damages. We suggest, however, that a formal issue as to contributory negligence may tend to simplify the situation.

The defendant is entitled to a new trial on the issue of damages.

New trial.