#### GEORGE L. WIMBERLEY, Jr., Admr., v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 12 November, 1925.)

1. Employer and Employee — Master and Servant — Commerce—Railroads — Federal Statutes.

In an action to recover damages for the alleged negligent killing of plaintiff’s intestate, where it is admitted by the pleadings that the defendant was a common carrier by railroad, and engaged in'interstate commerce at the time of the killing, and the intestate was employed by the defendant in such commerce, the defendant’s liability is determinable under the Federal Statute.

2. Evidence — Nonsuit.

Upon defendant’s motion as of nonsuit, the evidence is to be considered in the light most favorable to the plaintiff.

3. Employer and Employee — Master and Servant — Negligence—Commerce — Federal Employers’ Liability Act — Evidence—Nonsuit.

Where there is evidence that the plaintiff’s intestate was employed, as a part of his duty to a railroad company, to throw the switches to pass the trains from the main line to a siding for the passage of another train, under the custom of slowing down the train before reaching the switch, the passing of the switchman along the side of the locomotive, jumping from the pilot of the engine to the ground, running ahead and opening the switch to allow the passing of the train without stopping; that at the time in question the pilot was covered with frost and particularly dangerous for this purpose, and that the plaintiff’s intestate fell to his death under the implied order of the engineer, the defendant’s vice-principal, at a time when the engine made a sudden jerk or movement: Held, upon a motion by defendant as of nonsuit, the evidence was sufficient to warrant the jury in finding that the plaintiff’s intestate was negligently permitted or directed to act as he did, and to deny said motion, and permit the inference of defendant’s actionable negligence.

*4454. Same — Assumption of Risks.

The doctrine of assumption of risks has no application to cases arising when the negligence of a fellow-servant or coemployee, which the injured party could not have foreseen or expected, is the sole, direct and immediate cause of the injury.

5. Evidence — Conflicting Evidence of Plaintiff — Nonsuit.

The defendant’s motion as of nonsuit will be denied, though from a part of the plaintiff’s evidence no cause of action has been shown, if other of his evidence is sufficient to sustain his cause.

Appeal by defendant from Sinclair, J., at April Term, 1925, of Nash.

Civil action arising under the Federal Employers’ Liability Act, and tried upon the following issues:

“1. Was the plaintiff’s intestate killed by the negligence of the defendant as alleged in the complaint? Answer: Yes.

“2. Did the plaintiff’s intestate, by his own negligence, contribute to his injury? Answer: No.

“3; Did the plaintiff’s intestate voluntarily assume the risk incident to performing the work in the manner in which he undertook to do it? Answer: No.

“4. What damages, if any, is plaintiff entitled to recover ? Answer: $15,000.00.

“5. What part of the recovery, if any, is the widow entitled to? Answer: $5,000.00.

“6. What part, if any, is the son entitled to ? Answer: $10,000.00.”

From a judgment on the verdict in favor of plaintiff, the defendant appeals, assigning errors.

J os. B. Ramsey and J ohn Kerr, Jr., for plaintiff.

Thos. W. Davis, V. K. Phelps and Spruill & Spruill for defendant.

Stacy, C. J.

It is alleged in the complaint and admitted by the answer that the defendant is a common carrier by railroad, engaged in interstate commerce, and that plaintiff’s intestate was employed by the defendant in such commerce at the time of his injury and death. The case, therefore, is one arising under the Federal Employers’ Liability Act, and it has properly been tried under that act. Shanks v. Del. R. Co., 239 U. S., 556; Capps v. R. R., 183 N. C., 181. The deceased employee left a widow and one small son him surviving, and his administrator, or personal representative, is prosecuting this suit on behalf of these persons, who fall in the first class of beneficiaries under the statute. Horton v. R. R., 175 N. C., 472; Dooley v. R. R., 163 N. C., p. 463.

The defendant’s chief assignment of error, or the one most strongly urged on the argument and in its brief, is the exception addressed to the *446refusal of tbe court to grant its motion for judgment as of nonsuit, made as permitted by C. S., 567, at tbe close of plaintiff’s evidence. There was no evidence offered by tbe defendant. With reference to tbe rule of procedure applicable, authorized by statute in this jurisdiction, it is uniformly held that on a motion for involuntary nonsuit, considered with us as equivalent to a demurrer to tbe evidence, tbe facts making for tbe plaintiff’s claim and which tend to support bis cause of action, must be taken as true and construed in tbe light most favorable to him. Nash v. Royster, 189 N. C., p. 410; Lamb v. R. R., 179 N. C., p. 623.

Viewing tbe evidence under this rule and in its most favorable light for tbe plaintiff, we find tbe following facts sufficiently established, or as reasonable inferences to be deduced from tbe testimony of tbe witnesses :

1. Plaintiff’s intestate, R. C. Murray, was killed about 4:00 a. m., 21 January, 1921, while in tbe discharge of bis duties as brakeman on tbe defendant’s northbound freight train, No. 212, composed of a Pacific-type engine, No. 1558, tender and 75 cars, as it approached Rennert’s Siding, approximately 20 miles south of Fayetteville, N. C., on an interstate run from Florence, S. C., to points as far north as Rocky Mount,'N. C.

2. Tbe freight train in question was running on a “time order,” ahead of No. 86, one of tbe defendant’s fast passenger trains, and tbe engineer of tbe freight train,. with only “running time and clearance time” and probably a few minutes to spare, was preparing to take tbe spur track at Rennert’s Siding, so that No. 86 might pass at this point.

3. It was tbe duty of plaintiff’s intestate to throw tbe switch in order that tbe freight train might clear tbe track for tbe oncoming passenger train.

4. Plaintiff’s intestate was riding on tbe engine with tbe engineer; he knew of tbe order to clear tbe main line for No. 86, and tbe time within which tbe rules of tbe company required this to be done; be said to tbe engineer as they came within a mile and a half or more of Ren-nert’s Siding, “When we get there I will go out and set tbe switch so you will not have to stop,” to which tbe engineer replied, “Well, I will appreciate it.” This was equivalent to an order from tbe engineer to throw tbe switch.

5. Plaintiff’s intestate left tbe cab of tbe engine, from tbe fireman’s side, walked along tbe narrow foot board about 14 inches wide, leading from tbe cab to tbo pilot of tbe engine and which is provided for going along that way and is protected by a small band rail, but be fell and was killed by tbe train before it reached tbe switch.

*4476. At tbe time plaintiff’s intestate left tbe cab to go out over tbe engine and across tbe pilot, tbe train was running at a rate of 15 or 18 miles an bour and was about a quarter of a mile from Rennert’s Siding. He expected to jump from tbe pilot to tbe ground, run ahead of tbe moving train and qpen tbe switch so that it could take tbe siding without coming to a full stop. This was tbe customary method of throwing switches for these trains, and tbe officials of tbe company knew of its practice, but tbe evidence is conflicting as to whether such practice was in violation of tbe rules of tbe company.

7. There was evidence from which tbe jury could infer that after plaintiff’s intestate left tbe cab of tbe engine, tbe speed of tbe train was reduced from 18 miles per bour to 5 miles per bour within a comparatively short distance; and from this circumstance plaintiff contended that bis intestate fell from tbe engine by reason of a sudden jerk or jolt, though there was direct evidence in denial of any unusual jar of tbe train.

8. It was further in evidence that tbe pilot of tbe engine was in a damp, frosty condition and tbe night dark and pretty cold.

Upon these tbe facts chiefly pertinent and bearing directly on tbe question of tbe defendant’s liability, we think tbe trial court correctly submitted tbe case to tbe jury, and that tbe motion for judgment as of nonsuit was properly overruled. There is ample evidence to warrant tbe jury in finding, as it did, that plaintiff’s intestate was negligently permitted and directed to leave tbe train under conditions that were not safe, and that be was negligently precipitated from tbe engine, which resulted in bis death. New Orleans, etc., R. R. v. Harris, Admr., 247 U. S., 367; Sweeney v. Erving, 228 U. S., 233; Looney v. R. R., 200 U. S., 480; Ridge v. R. R., 167 N. C., 510.

Speaking to a similar question in Fitzgerald v. R. R., 141 N. C., p. 534, Holce, J., said: “It is very generally held that direct evidence of negligence is not required, but tbe same may be inferred from facts and attendant circumstances, and it is well established that if tbe facts proved establish tbe more reasonable probability that tbe defendant has been guilty of actionable negligence, tbe case cannot be withdrawn from tbe jury, though tbe possibility of accident may arise on tbe evidence,” citing authorities for tbe position.

Tbe defendant may have elicited on cross-examination,' evidence somewhat contradictory to that above detailed, but this only affected tbe credibility of tbe witnesses and did' not destroy their testimony. Christman v. Hilliard, 167 N. C., 4.

Animadverting on a similar situation in Shell v. Roseman, 155 N. C., p. 94, Allen, J., said: “¥e are not inadvertent to tbe fact that tbe plaintiff made a statement on cross-examination as to a material matter, *448apparently in conflict with, bis evidence wben examined in chief, but this affected bis credibility only, and did not justify withdrawing bis evidence from the jury. Ward v. Mfg. Co., 128 N. C., 252.”

Again it is the accepted position with respect to cases arising under the Federal Employers’ Liability Act that the doctrine of assumption of risk has no application wben the negligence of a fellow-servant or co-employee, which the injured party could not have foreseen or expected, is the sole, direct and immediate cause of the injury. Seaboard R. R. Co. v. Horton, 233, U. S., 492, Cobia v. R. R., 188 N. C., 487; Bass v. R. R., 183 N. C., 444.

In Reed v. Director General of Railroads, 258 U. S., 92, 66 L. Ed., 480, a caboose of an interstate train was being moved in front of a locomotive through the railroad yards at South Bethlehem, Pa., and over tracks equipped with derailing devices; the engineer could not see these devices when operating the engine from his cab, and, for this reason, Leo C. Reed, a member of the train crew, was directed to and did locate himself on the front of the caboose, with the duty to signal the engineer in time for him to stop, if it should be discovered that one of the derailing devices was set against further passage. One was so set, but, either through the negligence of Reed himself, or of the engineer in failing to notice or heed his signaling, the locomotive did not stop with safety, the caboose was derailed, and Reed was crushed to death between it and cars • on an adjoining track. Accepting the view that the engineer’s negligence was the proximate cause of the fatal injury, the Supreme Court of Pennsylvania held the decedent had assumed the risk of such negligence and the master was not liable. This was reversed on certiorari by the Supreme Court of the United States, and in delivering .'the opinion of the Court, Mr. Justice McBeynolds, said:

> “In actions under the Federal act, the doctrine of assumption of risk certainly has no application when the negligence of a fellow-servant, which the injured party could not have foreseen or expected, is the sole, direct, and immediate cause of the injury. To hold otherwise would conflict with the declaration of Congress that every common carrier by railroad, while engaged in interstate commerce, shall be liable to the personal representative of any employee killed while employed therein, when death results from the negligence of any of the officers, agents, or employees of such carriers.”

The remaining exceptions are without substantial merit; they have all been covered by former adjudications. Ve have examined the authorities cited in the defendant’s carefully prepared brief, but find that they are easily distinguishable from the case at bar by reason of the peculiar facts here presented. Viewing the record in its entirety, we think the verdict and judgment should be upheld.

No error.