dissenting: Notwithstanding the rules of the company prohibited employees from going between ears while in motion, if the plaintiff had orders to do so from the yardmaster, and was injured in consequence, the company is liable. Mason v. R. R., 111 N. C., 485; s. c., 114 N. C., 718.
On the first issue, “Was the plaintiff injured by the negligence of defendant?” there is no question of proximate cause, but of direct cause. The language of the issue itself is.clear as to this, “Was the plaintiff injured by the negligence of the defendant?” The court charged in accordance with the precedents and the jury found in the affirmative.
The second issue is, “Was the plaintiff guilty of contributory negligence ?” Upon the very frame of the issue the question of proximate cause is its essential element, which the statute requires the defendant to allege and prove. Unless the negligence of Ihe plaintiff contributed to the injury, i. e., was the proximate cause thereof so as to exculpate the defendant from liability for the injury which on the first issue the jury found the defendant caused the plaintiff by its negligence, then the defendant is liable. The very'heart of the issue is the inquiry of fact as to whether the plaintiff contributed to the injury, and by such negligence as was the proximate cause of the injury he *365sustained. Tbe charge of the court properly presented the real issue of fact in controversy, and that was, “Did the plaintiff by stepping in between the moving cars, if he did so step in (which the plaintiff testified that he did not), contribute to his injury, or was it an act entirely disconnected with the injury, which was caused solely by attempting to uncouple the hose while the train was stationary?”
The jury found either that the plaintiff did not step in between the cars while in motion, which was his testimony, or that, if he did, this did not contribute to — that is, that it was not the proximate cause of — the injury, but was totally disconnected with the injury, which was caused by the sudden jerking of the car while the plaintiff was uncoupling the hose after the train had stopped. This was a question of fact for the jury, as to which the judge could have expressed no opinion.
The lawmaking power of a just and humane people has often found it necessary to legislate, for the protection of employees injured in the service of railroad companies. It has been enacted (now Revisal, 483), contrary to the former ruling of this Court in Owens v. R. R., 88 N. C., 502, that the burden is upon the defendant to allege and prove contributory negligence. It must not only prove negligence on the part of the plaintiff, but that his negligence was the proximate cause of his injury. A later act (now Revisal, -2646) cut off the defenses of the assumption of risk and that an injury was caused by the negligence of a fellow-servant. . The Federal statute not only embraces the above provisions, but it has gone further and has provided that contributory negligence shall not be a bar to any action, but can only be considered by the jury in estimating the amount of the recovery. This is doubtless the result of the decisions of some courts upon above statutes, not in accord with their spirit.
To hold that the proximate cause is a question of law for the court, and not one of fact for the jury, is to reverse our entire doctrine in regard to negligence. When we adopted the “rule of the prudent man” we made negligence an issue of fact and not one of law. Proximate cause, has always been an issue of fact to be found by the jury.
*366On tlie issue of damages the court erred in tlie respect pointed out, but this entitles the defendant merely to a new trial upon that issue, for the error is totally disconnected. from the issues as to negligence and contributory negligence.
There should be a partial new trial over the issue as to damages o^ily.