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 company were engaged in coupling some cars on a spur track of the company, running into the (75) yards of Hackney Brothers; that the engine was being operated at the time by one A. L. Darden, an engineer also in employ of defendant, and as said engine was backed against the first of the cars, plaintiff, by direction of the yard conductor, and in the line of his duty made the coupling, and while the engine was standing still, plaintiff endeavored to pass between the engine and the car, by getting over the drawhead, and swung himself up for the purpose, when the engine, without further signal, was suddenly moved towards the car, causing plaintiff to fall, and whereby plaintiff's foot was caught between the bumpers and crushed, causing the injuries as stated; that by custom and practice, after the coupling was made, the switchman was to give a signal to this effect, and the engineer moved the engine further as per signal, and on this occasion plaintiff had given no signal for the engine to move, and at the time was endeavoring to pass between the engine and the 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 the engineer for some further couplings then to be made.
There was testimony on part of defendant tending to show that the engineer had moved his engine towards the car at the time, in response to a proper signal from another switchman, and that he was free from blame in the matter, but this may not be considered on a motion to nonsuit, and accepting the testimony of plaintiff as true, the established position on a motion of this character, it clearly permits if it does not require the inference that plaintiff was injured as the proximate result of defendant's negligence. It was earnestly urged for defendant that judgment of nonsuit should have been allowed because the negligence of plaintiff was clearly the proximate cause of the 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 the statute applicable, C. S. 3467, and which provides in *Page 81 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 his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employee," etc.
This statute, enacted at the session of 1913, is controlling on the facts of the present record, and by its express provisions, contributory negligence on the part of the employee, though established, as it was in this instance, no longer bars a recovery, but is to be considered only on the question of damages, an effect that was no doubt properly allowed it on the trial, as no exception appears to the determination of that issue.
The authority chiefly commented by counsel, Dermid v. R.R., supra, was a case decided before the enactment of the statute (76) 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.
Cited: Freeman v. Ramsey, 189 N.C. 797.