#### WALTER PYATT v. SOUTHERN RAILWAY COMPANY.

(Filed 10 September, 1930.)

1. Master and Servant E a — Liability of railroad for injury to employee engaged in interstate commerce is governed by Federal decisions.

In an action in our State court by an employee for damages against a railroad company for an injury inflicted on bim while engaged in interstate commerce, the defendant’s liability is governed by the Federal Employers’ Liability Act and the principles of the common law as applied by the Federal courts.

2. Master and Servant E b — In order to recover under Federal Employers’ Liability Act the plaintiff must establish negligence.

Under the provisions of the Federal Employers’ Liability Act the plaintiff employee must establish the negligence of the defendant railroad company, and no recovery can be had merely by proof of injury sustained by the employee while engaged in interstate commerce.

*3983. Same — Contributory negligence will not bar a recoveiw under the act where the defendant violates any statute enacted for employees’ safety.

Under the provisions of the Federal Employers’ Liability Act contributory negligence of an employee will not be considered when the injury is a result of the violation by the defendant of any statute enacted for the safety of such employee.

4. Same — An employee does not ordinarily assume the risk of the employer’s negligent act or order.

An employee assumes the ordinary risks of his employment, but not such risks as are due to the negligence of the employer until the employee is aware of the negligent act and the risk arising therefrom, unless the negligence and the risk are so obvious that a person of ordinary prudence would have observed and appreciated them and quit the employment rather than incur them.

5. Same — Evidence of employer’s negligence held sufficient to go to the jury in this case.

Where, in an action by an employee against a railroad company to recover damages for a personal injury under the Federal Employers’ Liability Act, there is. evidence tending to' show that the plaintiff employee was ordered by the carrier’s alter ego, in helping to remove a worn rail from the track, to strike and loosen the rail at one end, and that the plaintiff, after striking several blows with a hammer furnished by the defendant, stepped over between the rails to see if all spikes had been removed, and that at this moment the foreman and another worker loosened the rail with crow-bars, causing it to hit and injure the plaintiff, and that the plaintiff was not warned, as was the custom, that the rail was going to be moved by crow-bars, is held,, under the provisions of the Federal Employers’ Liability Act, sufficient to be submitted to the jury on the question of negligence, contributory negligence and assumption of risks.

6. Appeal and Error E a — An exception without an assignment of error thereon will not be considered on appeal.

An exception without error assigned thereon will not be considered on appeal to the Supreme Court. Rule 28, 192 N. C., 853. Semble, the testimony objected to was properly admitted as a “shorthand statement of a collective fact.”

7. Trial E g — Charge correct when construed as a whole will not be held for reversible error.

A charge of the trial court to the jury will not be held for reversible error when construing the charge as a whole it correctly gives the law applicable to the evidence in the case.

. Appeal by defendant from Harding', J., and a jury, at February Term, 1930, of McDowell.

No error.

This is an action for actionable negligence brought by plaintiff against defendant. The defendant denied negligence and also set up the plea of assumption of risk and contributory negligence. The evidence of *399plaintiff was to tbe effect: That be worked on tbe Asheville division of tbe defendant company, near tbe 97th mile post, east of Marion junction. "Wben be was injured on 28 May, 1928, be was a laborer, and witb three others was working under J. E. Sigmon, who was section foreman or boss, and whose orders be was in duty bound to obey. Tbe place was on a curve and tbe track tbe trains came on could be seen about 150 to 200 yards each way from tbe place they were working. About twenty trains passed over tbe track each day. A rail on tbe north side of tbe curve, tbe outside rail on tbe track, bad become defective or worn and bad to be removed and a sound rail put in its place. Tbe new rail, weighing about 900 pounds, was brought by tbe crew and put in tbe center of tbe track south of and two feet from tbe worn rail to be removed, and about seven inches bad to be cut off to fit and allow for expansion and contraction. This took about 30 or 40 minutes. After this was done, two of tbe laborers were sent in opposite directions witb red flags to protect tbe workmen from tbe coming of trains. To remove tbe worn or defective rail, tbe laborers witb tbe crowbars pulled out tbe spikes on tbe inside of tbe rail; one of tbe laborers worked on tbe east and plaintiff on tbe west, taking off tbe bolts and angle bars that fastened tbe worn rail to tbe adjoining rails. When this was accomplished, tbe foreman gave orders that one of tbe laborers go to tbe east and plaintiff to tbe west and knock tbe rail in. Tbe rail was tight, and usually when knocked loose would recoil or rebound. When plaintiff started to do this the foreman was opposite from tbe direction be was going. “When be told me to go and knock that rail loose, be called me and said, Walter, burry up and get your bolts out and your angle bars off, and let’s get this rail removed.’ . . . In an effort to knock it loose at tbe end, I struck it some three or four times. I struck it witb a ten-pound hammer. We usually use that size hammer for such work. I struck it as bard as I could. At tbe time I was knocking at tbe end of this rail witb my hammer, I was standing witb my back toward tbe foreman, Mr. Sigmon. I really don’t know where be was then or what be was engaged in. . . . After I dealt these blows to tbe end of tbe rail and it wouldn’t move, I stepped over inside. I thought there might be a spike that probably wasn’t pulled. Sometimes where tbe timber was not so sound, tbe tie plate was cut down and tbe rail was wedged against tbe wood. Sometimes you have to cut the wood. If there are spikes, of course, they have to be removed before it will move. Just after I made tbe step tbe rail bit me. Just as I stepped over tbe rail I didn’t see what tbe section foreman was doing as that rail struck me. At tbe time tbe rail struck me, tbe best I could tell it was rebounding. Tbe rail struck my foot three times. It . seemed like it paralyzed me for a moment so that I couldn’t move, and when I did *400move, I found that my ankle was over. Tbe rail rebounded, moved backwards and forwards, but I couldn’t say bow many times. To1 tbe best of my knowledge, it struck me three times. Tbe rail couldn’t possibly bave rebounded before it was made loose in tbe position in wbicb I was working at tbe time. It was not released by tbe blows wbicb I dealt it at tbe end; it was released by some other means. . . . After I struck I saw Mr. Sigmon and Mr. Swafford standing near tbe center of tbe rail with crow-bars in their bands. They were on tbe outside of tbe rail. Tbe rail bad moved from them. . . . There was nobody else in a position that they could bave moved tbe rail except Sigmon and this other band with tbe crow-bars. . . . So we put this new rail that was going to take tbe place of tbe old one right there in a convenient place on tbe track where we were going to take out tbe old rail. This was tbe main line of tbe Southern Railroad, standard gauge track, and to tbe best of my knowledge, it is about 56 inches — four feet and eight inches, to be exact. This was a very sharp curve. As to your question, tbe greater tbe curve, tbe greater tbe danger from removing rails after being confined for some time, that they will kick back; that depends on bow tight tbe track is. ... I suppose John Swafford went to work at bis end. I didn’t see him. I couldn’t do tbe work I was required to do there in a burry and watch somebody else three feet away from me. Part of tbe time my back was to him and I was changing positions.there. I don’t know that I even glanced up while I was taking the bolts out to see what anybody else was doing. Why should I be interested in what they were doing? I was trying to do tbe work I was assigned to do, and I couldn’t do that and watch what somebody was doing. I didn’t see that it was necessary. When I saw tbe rail wouldn’t move I looked to see what was tbe matter, and also to see what tbe foreman would say. When I looked up tbe rail struck me. . . . Q. If you bad continued to stand where you were ordered to stand, and should bave stood in order to knock this rail loose, you wouldn’t bave been injured ? Answer: I don’t know. I bad orders to knock it loose. I didn’t knock it loose. I knew that this rail that was to be removed was a’ tight rail. I knew that a tight rail might rebound. And knowing that, I was trying to remove it, and I bad orders to remove it; that Swafford bad orders to knock it loose at tbe east end, and without knowing what tbe other men were doing, I put my foot in there between this rail and the other rail on tbe track. I was doing my ordinary duties. ... I was not there knocking any longer than it took to make three licks. When I turned around to step between tbe track I was facing south. And looking south, I couldn’t see tbe other bands and see what they were doing. If I bad looked up I could bave seen them. I never saw them until after tbe rail struck me. They were *401standing near tbe center of tbe rail witb bars in tbeir bands. . . . At tbe time Mr. Sigmon told me to go to tbe west end of tbe rail and knock it loose witb my hammer, be did not have tbe crow-bars under tbe rail. He was standing straight up. He didn’t have bis crow-bars at tbe rail to my knowledge. I was there where I could see him. Q. What notice, if any, did you have that tbe rail was going to be removed by tbe crow-bars until it was moved. A. I didn’t know that it was going to be moved at all until it struck me. (Cross-examination) : I said I didn’t know the rail was going to be moved. I went there for tbe purpose of removing tbe rail. 1 didn’t know they were going to throw the rail over on top of me without warning me. I saw tbe crow-bars laying around on tbe ground. Sigmon didn’t have any crow-bars in bis bands. I knew that in removing rails that were tight on a curve they used crow-bars, but they generally say something about it when they get ready to use them. That is tbe only time I ever knowed be missed it. I depended on Warning. I knew they always used crow-bars in removing tight rails when they wouldn’t come out by knocking witb tbe hammer.”

It was in evidence that plaintiff worked off and on for defendant as a laborer for some twenty-seven years, and tbe last five and a half years regularly.

John Swafford, one of the section crew, a witness for defendant, on cross-examination, was asked: “Do you think it is dangerous to shove a rail in witb crow-bars without warning all tbe people within reach of it that it would be dangerous? Answer: Well, it is dangerous all right.”

Tbe evidence on tbe part of tbe defendant was to tbe effect that plaintiff was ordered to go to tbe west and on tbe north side of tbe worn or defective rail and knock tbe rail loose, and if be bad obeyed these instructions be would not have been injured. That be knew at tbe time this order was given him that tbe foreman and another were using tbe crow-bars at tbe middle of tbe rail to prize tbe rail loose, and witb this knowledge be stepped over between tbe rail being removed and tbe new rail, and was injured by bis own negligence. That be knew from bis experience tbe rail when released would recoil or rebound; that be abandoned tbe place of safety on tbe north side of tbe rail where be was ordered by tbe foreman to stand and knock tbe worn or defective rail loose, and witb knowledge of tbe peril and risk abandoned bis place of safety and voluntarily stepped into a place of danger and was injured, and assumed tbe risk.

The issues submitted to tbe jury and tbeir answers thereto', were as follows:

“1. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: Yes.

*4022. Did the plaintiff assume the risk as alleged in the answer? Answer: No.

3. Did the plaintiff, by his own negligence, contribute to his injury, as alleged in the answer? Answer: Yes.

4. What damage, if any, is the plaintiff entitled to recover. Answer: $5,000.”

B. L. Bussell, Billard S. Gardner and W. T. Morgan for plaintiff.

5. J. Ervin and S. J. Ervin, Jr., for defendant.

CiARicsoN, J.

The defendant, at the close of plaintiff’s evidence, and at the close of all the evidence, made motions for judgment as in case of nonsuit. O. S., 567. The court below overruled the motions, and in this we see no error. The defendant also in apt time, in writing, requested the court below to instruct the jury to answer the first issue “No” and the second issue “Yes.” O. S., 565. The court below refused to give these instructions, and in this we can see no error.

It is admitted that when the injury occurred defendant was engaged, and plaintiff was employed by defendant, in interstate commerce. The action must be determined by the Federal Employers’ Liability Act. Cole v. R. R., ante, 389.

“The decision of the United States Supreme Court upon the proper interpretation, construction, and effect of statutes regulating or affecting interstate and foreign commerce is conclusive upon all other tribunals when the same matters are called in question. And the decisions of the Federal courts are to be followed by the State courts, in the construction of the act.” Richey, Federal Employers’ Liability, (2 ed.), ch. 5, p. 33, sec. 20.

“Under section 1 of the act the employer 'is liable, other requisites being shown, for Injury or death resulting in whole or in x>art from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.’ The act does not give a cause of action to the employee for injuries not occasioned by negligence, and no recovery can be had under this act by simply showing the injury, and that at the time the injured servant was engaged in interstate commerce.” Richey, supra, p. 117-8; R. R. v. Horton, 233 U. S., 492, 59 Law Ed., 1062, 162 N. C., 424.

“By section 3 of the act it is provided that ‘no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation of such common carrier of any statute enacted for the safety of employees contributed to the *403injury or death of such employee.’ In other words, as to cases of this character, the defense of contributory negligence is wholly abolished.” Richey, supra, p. 150-1.

“By section 4 of the act of 1908, it is provided that: ‘In any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any ease where the violátion by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.’ The defenses of assumed risk and contributory negligence have frequently been referred to and discussed by courts without making any discrimination between them. This is doubtless due to the fact that both have heretofore been treated in law as complete defenses in suits for personal injuries, and there was no necessity for observing the technical legal distinction. And while of little consequence when both led to the same result, it becomes important in actions founded upon the Federal act, which in ordinary cases recognized assumption of risk as a complete bar to the action, while contributory negligence merely mitigates the damages. Nor is it to be supposed that Congress in enacting the statute was ignorant of the distinction, because it is only through a distinction between contributory negligence and assumption of risk being recognized, that any, but a contradictory meaning would be expressed by sections 3 and 4.” Eichey, p. 167; R. R. v. Horton, supra.

“The general rule of the Federal courts as to assumption of risk is stated in the case of Gila Valley, etc., R. Co. v. Hall, 232 U. S., 94, as follows: ‘An employee assumes the risk of dangers normally incident to the occupation in which he voluntarily engages, so far as these are not attributable -to the employer’s negligence. But the employee has a right to assume that his employer has exercised proper care with re^ spect to providing a safe place of work, and suitable and safe appliances for the work, and is not to be treated as assuming the risk arising from a defect that is attributable to the employer’s negligence, until the employee becomes aware of such defect, or unless it is so plainly observable that he may be presumed to have known of it. Moreover, in order to charge an employee with the assumption of a risk attributable to a defect due to the employer’s negligence, it must appear not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent person, under the circumstances, would have appreciated it.’ A servant on accepting employment assumes all the ordinary and usual risks and perils incident thereto. The ‘ordinary’ risks are those which are a part of the natural and ordinary *404method of conducting the business and wbicb are often recurring. The ‘usual’ risks are those which are common, frequent, and customary. Every risk which is not caused by a negligent act or omission on the part of the employer is an ordinary risk.” Richey, p. 117-8.

It appears from the record, and there seems to be no dispute, that J. E. Sigmon was the foreman or boss and alter ego of defendant company, whose orders and directions plaintiff was in duty bound to obey. Patton v. R. R., 96 N. C., 455; Thompson v. Oil Co., 177 N. C., 279; Davis v. Shipbuilding Co., 180 N. C., 74; Robinson v. Ivey, 193 N. C., 805.

From the law before stated, laid down by the Supreme Court of the United States, construing the Federal Employers’ Liability Act, it will be noted that recovery is based on negligence as it exists at common law. Cole v. R. R., supra.

The plaintiff’s evidence was to the effect that he was performing his duty in knocking the worn or defective rail loose with a hammer, as he was instructed by defendant’s alter ego to do. When striking it a few blows it did not come loose and he stepped over inside to see if a spike probably was not pulled, or sometimes the timber (cross-ties) was not sound, the tie plate was cut down and the rail would become wedged against the wood and the wood would have to be cut. When he was ordered to do the work, Sigmon, the boss, and the other member of the crew did not have the crow-bars under the center of the worn or defective rail to prize it. He didn’t know it was going to be moved by the crow-bars until he was struck. He was standing with his back to the foreman. He did not know that the rail was going to be thrown on him without warning — “I depended on warning.” The testimony of defendant’s witness, Sigmon, was to the contrary. The jury has taken plaintiff’s version of how he was injured and we are bound by their finding. The evidence was sufficient to be submitted to the jury on the question of negligence, assumption of risk and contributory negligence.

“A servant does not assume the extraordinary and unusual risks of the employment, and he does not assume the risks which would not have existed if the employer had fulfilled his contractual duties. But only those risks are assumed which the employment involves after the employer has done everything that he is bound to do for the purpose of securing the safety of his servants, that is, he does not assume the risk of injury from the negligence of the master.” Eichey, p. 179.

Defendant cited the following cases in support of its motion to non-suit, and for a directed verdict: Tuttle v. R. R., 122 U. S., 189; Aerkfetz v. Humphries, 145 U. S., 418; Boldt v. R. R., 245 U. S., 441; R. R. v. Nixon, 271 U. S., 218; R. R. v. Allen, 276 U. S., 169; R. R. v. Koske, 279 U. S., 11; R. R. v. Davis, 279 U. S., 37-8.

*405From an examination of tbe cases we do not think they are applicable to tbe facts in tbis case. Tbe defendant in its brief, quoting tbe Davis case, says: “Tbe principle enunciated in tbis case covers our case as witb a garment,” not from tbe finding of tbe jury taking plaintiff’s testimony to be true. From tbe orders given by tbe foreman for one of tbe laborers to go to tbe east and plaintiff to tbe west and knock tbe rail in or loose, plaintiff in tbe performance of tbis ordinary duty witb due care could presume tbat no other method, and especially one fraught witb danger to himself, would be resorted to, tbe use of crow-bars by tbe foreman and a helper, unless notice was given him. Tbe stepping in between tbe two rails to see why it did not release on knocking, a reason, being given, was not such assumption of risk tbat would as a matter of law bar a recovery. All of these were matters for tbe jury to determine.

Tbe question asked on cross-examination of defendant’s witness: “You tbink it is dangerous to shove a rail in witb crow-bars without warning all of tbe people within reach of it, tbat it would be dangerous ? Answer: ‘Well, it is dangerous all right.’ ” Plaintiff excepted to tbis, but made no assignment of error. Tbe exception cannot be considered, Rule 28, Rules of Supreme Court, 192 N. C., 853, yet we tbink it competent. Tbe witness was an employee of defendant. “Tbis is sometimes spoken of as tbe ‘shorthand statement of a fact,’ or as tbe statement of ‘a composite or compound fact,’ several circumstances combining to make another fact.” Marshall v. Telephone Co., 181 N. C., at 294. Our Court has allowed testimony to tbe effect tbat a different arrangement would have resulted in there being ‘a source of danger eliminated.’ ” Horne v. Power Co., 144 N. C., 378. Tbat “a double chain would be safer than tbe single one.” Britt v. R. R., 148 N. C., 41; tbat a car used in manufacturing iron was “defective,” Alley v. Pipe Co., 159 N. C., 327; tbat a voltage of 110 was not “dángerous,” Monds v. Dunn, 163 N. C., 110; tbat “I was walking just as careful as I could be.” Renn v. R. R., 170 N. C., at 141.

In McCord v. Harrison-Wright Co., 198 N. C., at p. 745, tbe following was held competent: “It was supposed to be cut off and dressed up, too, because it was dangerous.”

“When an inference is so usual, natural, or instinctive as to accord witb general experience, its statement is received as substantially one of a fact — part of tbe common stock of knowledge.” 22 C. J., p. 530; Street v. Coal Co., 196 N. C., at p. 183.

Tbe court below charged: “Now, there is another risk tbat an employee may assume, even though tbe injury is brought about by tbe negligence of tbe defendant, and tbat is where one is injured by tbe negligence of an employer where tbe result of tbe negligent act, tbe *406danger in wbicb be is working, is so open and obvious that be can see it, observe it, and know tbe danger, tbe probability of danger to bim-self, even if it is tbe result-of tbe negligence of tbe employer; wben tbe employee sees tbe defect,' sees tbe danger, faces tbe probability of danger to bimself, understands it, observes it, and tben if be continues to work under those conditions tbe law says be assumes tbe risk; tbat is, tbe probability' of injury to bimself, even tbougb tbe defendant might be negligent. (If tbe probability of danger is greater than tbat of safety, or if it is so open and apparent, and there is such probability of injury tbat a man of ordinary prudence would not work under those conditions and be continues to work under them, tbe law says that- be assumes tbe risk of tbe injury by continuing in tbe work, even tbougb it is brought about by tbe negligence of tbe employer. Tbat is what tbe law means by assumption of risk.)”

Tbe latter part, in parentheses, is excepted to and assigned as error by defendant. Taking tbe charge of tbe court below as a whole, and defendant’s prayers for instructions, among other phases, tbe following was given, viz.: “In tbe consideration of tbe second issue, tbe court instructs you tbat, tbe plaintiff in becoming a member of tbe defendant’s section crew assumed, under tbe contract of employment, all tbe ordinary risks, hazards, and dangers of bis employment and tbat, if be was injured in consequence of one of these ordinary risks, hazards, and dangers, tbat it would be your duty to answer tbe second issue, Yes.”

We cannot bold from tbe authorities in tbe Federal Courts on tbe facts in this case, tbat this assignment of error can be sustained. “Tbe principal element of assumed risk is knowledge. Of usual and ordinary risks this is presumed, but many of tbe risks previously noted as not being assumed, as negligence of tbe employer, and extraordinary risks, are assumed wben tbe employee with knowledge thereof continues bis employment without objection. This knowledge must be shown, and tbat the plaintiff appreciated or was bound to appreciate tbe risk. . . . But risks wbicb are open and obvious or wbicb in tbe exercise of ordinary care an employee would have discovered, be is presumed to know and assume. ’But by this it is not understood tbat tbe employee is under a duty to anticipate or take any precautions to discover a danger tbe result of negligence on tbe part of tbe employer or coemployees.” Richey, supra, p. 180-1-2-3. As to tbe rule in this jurisdiction, see Maulden v. Chair Co., 196 N. C., at p. 124.

Tbe court below defined negligence, proximate cause, assumption of risk and contributory negligence, and applied tbe law applicable to tbe facts. Tbe court below stated to tbe jury, “I am requested to give you some special instructions wbicb I give you as instructions from tbe court.” Tbe court gave eight pages of instructions prepared by de*407fendant, setting forth the defendant’s contentions, covering every phase on each issue, and the charge on each issue was to the effect that the particular issue should be answered for defendant. The court gave in substance in the special instructions and in the charge substantially everything prayed for by defendant except nonsuiting plaintiff, and the prayer on all the evidence plaintiff could not recover. From the prayers asked for by defendant and given by the court below, the court “mighty near” charged plaintiff out of court. We do not think the charge subject to criticism under (Revisal, 535) C. S., 564.

The exception and assignment of error in reference to the charge as to “due care” cannot be sustained. This was premised on plaintiff’s evidence. We think if the charge is taken as a whole, with defendant’s prayers for instructions as given, and not disconnectedly, that in it there is no reversible or prejudicial error.

The court below seemed to have tried the case with “due care.” In law we find

No error.