#### J. L. McGRAW, Administrator of the Estate of W. R. PENDRY, v. SOUTHERN RAILWAY COMPANY and F. T. DUGGINS.

(Filed 11 July, 1934.)

1. Master and Servant E a — Federal Act applies to injuries to employees engaged in interstate commerce.

Where it is admitted that plaintiff’s intestate was engaged in interstate commerce at the time of the injury causing death, the liability of defendant railroad company therefor must be determined solely by the Federal Employers’ Liability Act as construed and applied by the courts of the United States.

2. Master and Servant E b—

The “scintilla rule” does not apply upon a motion as of nonsuit in an action governed by the Federal Employers’ Liability Act.

*8743. Same: Negligence A e — Doctrine of res ipsa loquitur held not to apply to facts of this case.

The evidence was to the effect that plaintiff’s intestate, engaged in interstate commerce, as a flagman on defendant’s train, gave the signal for the backing of the train, that he was required and instructed to be at the rear of the caboose upon such backing operations, and that he was not seen upon the train after it had backed, and that he was thereafter found dead on the track with indications that he had been dragged and run over by the train while it was backing. There was no direct evidence that intestate was standing on the rear platform or that he was thrown therefrom to his death. Held,, the doctrine of res ipsa loquitur does not apply to establish the contention of plaintiff that intestate was thrown from the rear of the train by some negligent operation thereof, the doctrine not being available to supply or create the necessary facts, but only to raise an inference of negligence in proper cases where the essential facts are established by evidence.

4. Master and Servant E b — Negligence may be imputed from unusual, sudden and unnecessary jerk or jolt in operation of freight train.

Railroad companies, in the operation of their freight trains, are held to a high standard of care commensurate with the attendant risks and dangers, and although negligence will not be inferred from ordinary jolts and jars, it may be imputed from an unusual, sudden and unnecessary jolt or jar.

5. Evidence K a. — Expert Testimony as to effect of sudden reduction in speed of train held competent.

Where there is evidence that the thirty-nine-car freight train on which intestate was flagman was slowed while backing from five or six miles an hour to one mile an hour within a distance of two car lengths, testimony of experienced trainmen that such sudden slowing of the train would produce a violent and unusual jerk upon the caboose or rear of the train is held competent, the weight of the testimony being for the jury.

6. Master and Servant E b—

In order for a recovery under the Federal Employers’ Liability Act, plaintiff must not only establish negligence, but also that the negligence complained of was the proximate cause of the injury in suit.

7. Same — Law will assume that train employee will be on part of train where he is required to be by rules and orders of his superiors.

The law will assume, nothing else appearing, that an employee on a train will be 'on that part of the train where he is required to be at the time by the rules of the company and the orders of his superiors, but such assumption is not binding on the jury, the ultimate fact being for their determination from all the testimony.

8. Master and Servant E c—

In the absence of proof to the contrary, the law will assume that a railroad employee exercised due care for his own safety.

9. Master and Servant E b — Evidence held sufficient for jury in this action against railroad to recover for employee’s death.

In this action against a railroad company to recover for the death of an employee engaged in interstate commerce, plaintiff offered evidence *875that in switching operations of defendant’s thirty-nine-car freight train, plaintiff’s intestate, an experienced trainman employed at the time as flagman, gave the signal for the train to back while standing on the rear of the train, that defendant’s rules and the orders of intestate’s superior required intestate to be on the rear platform in such backing operations, that the train was backing five or six miles an hour when it was slowed to one mile an hour within a distance of two car .lengths, together with competent opinion evidence that such sudden reduction in the speed of the train would cause a sudden and violent jerk upon the caboose of the train. Plaintiff’s intestate was not seen alive after he gave the backing signal, and he was thereafter found dead on the track with indications that he had been dragged and run over by the train when it was backing. The brass whistle from the back of the caboose was found near the body, with indications that it had been screwed partly out and then broken off suddenly. Held, the evidence was sufficient to be submitted to the jury, it being for the jury to determine from all the testimony whether intestate was standing upon the rear platform and was thrown therefrom to his death by an unusual, violent and unnecessary jerk of the train.

Stacy, C. J., dissents.

Schenck, J., took no part in the consideration or decision of this case.

Civil actioN, tried before Gowper, Special Judge, at 20 November Term, 1933, of Eobsyth.

W. E. Pendry bad been in tbe employ of the defendant for about twenty-two years. For several years he was a conductor and for sometime previous to his death, he was a flagman on a freight train. The deceased was killed on the night of 16 April, 1932. The facts surrounding his death were detailed by several witnesses. Daniels, the head brakeman, on the freight train, said: “The members of the crew . . . were Eamseur, conductor, Duggins, engineer, Armstrong, fireman, myself, and W. R. Pendry, flagman. The duties of the flagman are to assist the conductor and protect the rear of the train. No. 52 left Mooresville that night coming north at about 4:10 a.m. and reached Barber’s Junction at about 4:40. About twenty or twenty-one cars made up the train from Mooresville to Barber’s Junction. . . . When the train reached Barber’s Junction I threw the west “Y” switch and we headed in the “Y.” One car was set off on the storage track. . . . . After switching that car the engine went up to what is known as. the Park,. When we went up to the Park we picked up some cars in the main leg, what is known as the main leg of the Park, and then came down and got some on the back track. ... We picked up nineteen cars I believe. . . .We pulled them down here to this-switch and we went up the main line and coupled on to the west end of it. I made that coupling. We then backed the cars and coupled up the cars we brought up from Mooresville. Pendry made that coupling. . . *876After Mr. Pendry made that coupling be went back to tbe rear of tbe train. I saw bis light on tbe rear of tbe train. He was giving tbe backup signal on tbe north end of tbe caboose. ... At tbe time tbe engine passed tbe switch- from tbe old pass track into tbe west “Y” I was standing at tbe switch. ... At tbe time Pendry made tbe coupling on tbe west “Y” and after tbe train bad come to a standstill tbe engine was standing up on tbe old pass track about six or seven, maybe eight, car lengths up on tbe old pass track west of tbe switch from tbe old pass track into tbe west “Y.” I was then three or four cars from tbe engine, and after tbe signal was given and tbe engine started to pick up, I dropped off of that car when it passed tbe switch. At tbe time tbe engine passed me when I was standing there at tbe switch, in my opinion, I would imagine be was going around five or six miles an hour, and went about a couple of car lengths from tbe switch before I caught tbe engine. After tbe engine passed over tbe switch I bad to turn tbe switch. After tbe engine passed tbe switch and went tbe two car lengths, I can’t be positive whether it stopped or not. He got down slow for me to get on. I couldn’t say for certain whether be got plumb still or not but be got down slow. I imagine be was down to about a mile an hour, something like that. . . . They never did shut that engine plumb off at no time except when they stop; they are super-heated and they don’t shut them plumb off. They are working steam even when working against tbe brakes; working steam unless they come to an absolute standstill. ... At tbe time tbe engine passed me there at tbe switch, it bad about tbe same gait until it got past me and then be slowed down some for me to get on. "When it passed me and went up two car lengths and I caught tbe engine, be just backed on out on to tbe main line. I didn’t see any signal from tbe rear end for him to continue backing. I was on tbe front end and couldn’t see. . . . Tbe rules of tbe company are that when backing into tbe main line from any siding, there is supposed to be a man on tbe rear whose duties are to look out and don’t run over anybody or run into something, just to look out for tbe rear end in general. There is an air whistle on tbe rear of tbe train for him to blow in backing up. ... In my opinion there is fifteen or twenty feet, around fifteen feet, of slack in a train of forty box cars. . . . Tbe rules of tbe Southern Railway with reference to backing out of this particular west “Y” on to tbe main line are that a man must be on tbe back end of tbe platform and a chain goes across tbe drawhead, from one frame of tbe cab to tbe other. . . . Tbe pipe from tbe whistle down to tbe air line of tbe caboose is three or four feet long and tbe whistle is just screwed into tbe pipe. . . . Nothing unusual happened' to call my attention to tbe fact that be was stopping to pick me *877up. I didn’t bear bim apply bis brakes; couldn’t have beard tbat because of tbe exhaust and steam from tbe engine and things blowing. I reckon it was around five-thirty tbat we left Barber’s Junction. . . . After a train leaves a station and is on tbe main line, tbe flagman is supposed to ride tbe caboose and tbe conductor rides about anywhere be wants to, but usually rides tbe caboose. . . . Tbe first time I knew tbat Mr. Pendry was not on tbe train was when we got back to tbe roundhouse or tbe coal chute. Tbe conductor asked me bad I seen Pendry. I told bim I hadn’t. He said we left bim at Barber’s; tbat be wasn’t on tbe cab and hadn’t been on since we left Barber’s.”

When tbe train arrived at Winston-Salem and it was discovered tbat Pendry was missing a message was sent to Barber’s Junction in order to locate bim. Hill, a telegraph operator at Barber’s Junction, stated tbat be received a message from Winston inquiring about Pendry, and tbat in response to such message be went around tbe west “Y” and found tbe body of tbe deceased. He said: “Tbe body was about ten or twelve rail lengths from tbe point of switch of tbe Mooresville main line. . . . When we found tbe body be was lying on bis back, face up. . . . Tbe left leg was cut off with a bone sticking out several inches. . . .We didn’t find anything lying around bim, but as we went to tbe body we found things along tbe track. ... I noticed signs of something having been dragged along tbe track like a bag of meal dragging along there. Tbe dragging showed for a distance of about fifty or seventy-five yards. Further down we found bis pistol. . . . I think we found tbe pistol first and then bis pocketbook and bis watch, and a shoe and a whistle off tbe back of tbe cab. . . . Tbe pistol was lying between tbe rails with tbe hammer cocked. . . . Tbe warning whistle is tbe very last thing on tbe rear of tbe cab, sticking out. ... I didn’t pay very much attention to tbe whistle we found there, but it appeared like it bad been broken, like it bad been screwed, part of it, out and then suddenly broken off.”

Ramseur, tbe conductor, said: “When I left, Pendry was on tbe rear of tbe car to make tbe coupling. I didn’t see bim any more after be made tbat coupling. I instructed bim to make tbe coupling and to go back and protect tbe rear of tbe train, and so far as I know be went on back there. I did not signal tbe engineer ahead after be got water. He did pull ahead and I caught tbe caboose along about tbe water tank. When I got in tbe cab I didn’t see Mr. Pendry. . . . When I got on tbe caboose I saw Pendry’s lantern and brake stick tbat be used up in tbe Park. . . . His lantern was sitting in a cane bottom chair tbat was in tbe caboose; it was an old chair tbat bad been laying down in tbe caboose for some time and it was laying down when we pulled in there tbat morning. Tbe lantern was sitting down in tbe *878rounds of tbe cbair. . . . There were no lanterns or chairs turned over in the caboose. The track stick was lying up on the end of the chair.”

Plaintiff offered the testimony of Pugh, Morris, Surratt and Griffin, who testified that they were experienced in the operation and stopping of freight trains. In a general way these witnesses testified that if the engine of this particular train had slowed down from five or six miles to one mile an hour within a distance of two car lengths that in their opinion such operation would cause an unusual or violent jerk upon the rear of the train or the caboose where the deceased was supposed to be. These witnesses all said that the violence of the jerk upon the rear of a forty-car freight train would depend upon how the engineer undertook to make the stop or slowing down process; and furthermore, that the condition of the weather and of the track and various other elements would constitute factors in the operation.

At the conclusion of the evidence the trial judge struck out the opinion evidence and nonsuited the case, and the plaintiff appealed.

Dlledge & Wells and Parrish <& Deal for plaintiff.

Manly, Pendren & Womble and W. P. Sandridge, Jr., for defendant, Southern Railway.

DuBose & Wearner for defendant, P. T. Duggins.

Bbogdem, J.

~W. R. Pendry had been in the employ of the defendant for twenty-two years, serving as conductor and flagman for a freight train, and was an experienced trainman and thoroughly acquainted with switching operations at Barber’s Junction and elsewhere along the line. On the night of 16 April he was a flagman on a freight train bound for Winston-Salem. The train crew consisted of Ramseur, conductor, Dug-gins, engineer, Armstrong, fireman, and Daniels, head brakeman. When the train arrived at Barber’s Junction at about four-forty in the morning it became necessary to perform a switching operation. The engine was pulling twenty-one cars into Barber’s Junction. One of these cars was set off on a storage track. Leaving the twenty cars, the engine moved to the Park and picked up nineteen cars. Then the engine backed into the “Y” and “coupled up” to the twenty cars originally in the train. Pendry made that coupling. About eight o’clock on the morning of 17 April, 1932, the mangled body of Pendry was found about ten or twelve rail lengths from the point of the switch of the Mooresville main line. The body was “face up.” The left leg was cut off. “There were signs of something heavy having been dragged along the track a distance of fifty or seventy-five yards.” A short distance from the body down the track was a pistol of the deceased “with the hammer cocked.” *879“His watch was between the body and the pistol.” Farther on, the brass whistle on the back of the caboose was found. “It appeared like it had been broken, like it had screwed part of it out, and then suddenly broken off.” Pendry was last seen alive when he made the coupling and went back to the rear of the train. “He was giving the back-up signal on the north end of the caboose.” When the train pulled out on its journey the conductor went into the caboose and saw Pendry’s lantern sitting in the rounds of an old chair that was lying down in the caboose. His brake stick was lying on the end of the chair. Nothing was disturbed or turned over in the caboose. After Pendry made the coupling the conductor had instructed him “to go back and protect the rear of the train.” The rules of the defendant did not require the “flagman to use the whistle when the train is backing up, but it is there and can be used for such purpose.” But the rules with reference to backing at the west “Y” were to the effect that a man “would ride the rear of the train backing out of the west ‘Y’ at Barber’s.”

There was opinion evidence from men experienced in the operation of freight trains to the effect that reducing the speed of the engine under the- circumstances from five or six miles an hour to one mile within a distance of two car lengths would produce an unusual and violent jerk at the end of, the train or caboose.

The foregoing word-picture produces the paramount question of law involved in the case, to wit: Was there evidence of negligence on the part of the defendant and that such negligence was the proximate cause of the death of Pendry?

In arriving at a solution of the legal problem presented three preliminary observations are pertinent:

1. “It having been admitted that plaintiff’s intestate was engaged in interstate commerce at the time of his death, it necessarily follows that the liability of the defendant must be determined solely by the Federal Employers’ Liability Act as construed and applied by the courts of the United States.” Wolfe v. R. R., 199 N. C., 613, 155 S. E., 459.

2. The scintilla rule has been definitely and repeatedly rejected so far as the Federal Courts are concerned. Penn. R. R. Co. v. Chamberlain, 288 U. S., 333.

3. The principle-of res ipsa loquitur has no application. This doctrine permits and warrants an inference of negligence from facts. It has never been extended far enough to supply or create necessary facts, and, in addition, draw an inference from such vital facts so created. See Springs v. Doll, 197 N. C., 240, 148 S. E., 251.

The only evidence of negligence disclosed by the record consists of the opinion testimony of certain trainmen that the reduction of the speed of the train when it was backing from five or six miles an hour *880to one mile an bour within a distance of two car lengths, would tend to produce an unusual and violent jerk of the rear of the train or caboose. The operation of a freight train is not a sight-seeing tour. It is a rough process, under most favorable conditions, and attended with many unavoidable perils which are well known to every experienced trainman. Notwithstanding, “it is recognized in both jurisdictions that railroad companies in the operation of their freight trains are held to a high standard of care reasonably commensurate with the risks and dangers usually attendant upon the work, and although negligence may not be inferred from the ordinary jolts and jars incident to their operation, it may be imputed where there has been a 'sudden, unusual, and unnecessary stopping of such trains, likely to and which do result in serious and substantial injuries to employees or passengers thereon.’ ” Hamilton v. R. R., 200 N. C., 543, 158 S. E., 75.

The plaintiff contends that after making the coupling, Pendry walked back to the north end of the caboose and gave the backing-up signal to the engineer, and that he then went into the caboose, set down his lantern and brake stick, and went out on the rear platform of the caboose to blow the whistle while the train was backing, and that, while standing there in the line of his duty and in obedience to the rules of the defendant, a sudden, violent, unusual and unnecessary jerk was given the train and the deceased was thereby thrown off the rear of the platform beneath the wheels of the backing train, carrying the whistle with him as he fell to his death.

The defendant asserts that there was no unusual jerk or movement of the train, and that, while certain trainmen, who were not present and knew nothing about the actual facts and circumstances, testified that in their opinion there was an unusual jerk, nevertheless Daniels, the head brakeman, who was present and a witness for the plaintiff, said: “Nothing unusual happened to call my attention to the fact that he was stopping to pick me up.”

The opinion testimony, stricken out by the trial judge, relating to the effect of an alleged sudden reduction of the speed of the train upon the rear end or caboose, was competent. It is the function of the jury to weigh it and say what it is worth. Wilkinson v. Dunbar, 149 N. C., 20, 62 S. E., 748; Richardson v. Woodruff, 178 N. C., 46, 100 S. E., 173. Assuming, however, that there was more than a scintilla of evidence of an unusual jerk of the train, was such jerk the proximate cause of the death of Pendry? "Where was Pendry at the time the jerk came? His lantern and brake stick were in the caboose. No one saw him on the rear of the platform. Had he fallen from the train before the jerk?

*881Tbe general rule of law in determining liability in tbe Federal Courts is stated in Atchison, Topeka, & Santa Fe Railway Company v. Toops, Admr., 281 U. S., 351, 74 L. Ed., 896, as follows: “But proof of negligence alone does not entitle tbe plaintiff to recover under tbe Federal Employers’ Liability Act. Tbe negligence complained of must be tbe cause of tbe injury. Tbe jury may not be permitted to speculate as to its cause, and tbe case must be withdrawn from its consideration unless there is evidence from which tbe inference may reasonably be drawn that tbe injury suffered was caused by tbe negligent act of tbe employer. . . . Even though we assume that in all tbe respects alleged tbe petitioner was negligent, tbe record does not disclose any facts tending to show that tbe negligence was tbe cause of tbe injury and death. . . . What actually took place can only be surmised. Whether be was run down on tbe track by tbe first car or be attempted unsuccessfully to board tbe train on one side or tbe other or succeeded and in either case finally came to bis death by falling under or between tbe moving cars is a matter of guesswork.” To like effect is tbe statement of law in New York Central R. R. Co. v. Ambrose, 280 U. S., 486, 74 L. Ed., 562, as follows: “Tbe fact of accident carries with it no presumption of negligence on tbe part of tbe employer, and it is an affirmative fact for tbe injured employe to establish that tbe employer has been guilty of negligence — tbe evidence must point to tbe fact that be was. And where tbe testimony leaves tbe matter uncertain and shows that any one of half a dozen things may have brought about tbe injury, for some of which tbe employer is responsible and for some of which be is not, it is not for tbe jury to guess between these half a dozen causes and find that tbe negligence of tbe employer was tbe real cause, when there is no satisfactory foundation in tbe testimony for that conclusion. If tbe employe is unable to adduce sufficient evidence to show negligence on tbe part of tbe employer, it is only one of tbe many cases in which tbe plaintiff fails in bis testimony, and no mere sympathy for tbe unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs.”

In tbe case at bar tbe conductor bad directed tbe deceased to look after tbe rear of tbe train. Tbe rules of tbe company required that be should be on tbe rear of tbe train in a “backing-up” operation. Tbe law assumes that an employee will obey tbe rules, nothing else appearing, and that be will exercise in tbe absence of proof to tbe contrary, due care for bis own safety. He was last seen alive on tbe caboose when be gave tbe signal. He bad been inside tbe caboose to set down tbe lantern and brake stick, and, under tbe circumstances, it would seem more reasonable to infer that in executing tbe orders of bis superior and in obedience to tbe rules of bis employer, be proceeded *882to the rear of the caboose. Such inference, however, is not binding upon a jury when the jurors are called upon to find the facts fairly and reasonably in the light of all the testimony. In other words, was Pendry on the rear of the train? Was there an “unusual, violent and unnecessary” jerk of the train that threw him off to his death? These are controverted questions.

However, the Court is of the opinion that there was sufficient evidence to be submitted to the jury within the contemplation of the Federal rule.

Reversed.

Stacy, C. J., dissents.

ScheNck, J., took no part in the consideration or decision of this case.