dissenting: The plaintiff was not intentionally injured, of course, by his fellow-servants, but there is evidence that his injury was due to their negligence and not “purely an accident.” The evidence shows that he was not injured by any unforeseen circumstance, but-because his coemployees, though looking at him and knowing that his hand was on top of the tie to depress, it so that the end might go under the rail, negligently and carelessly shoved the tie with unnecessary and sudden force, so that he did not take his hand off in time to prevent the injury. The jury find that he was guilty of contributory negligence doubtless because he might have been quicker in taking his hand off the tie. But the jury found, as authorized by the act of 1913 and the charge of the court, that the greater negligence was on the part of his coemployees.
On the motion of nonsuit the evidence must be taken more strongly in favor of the plaintiff. But in any aspect of the evidence, if there is any to make it an accident, this was a matter for the jury, and they have found by the preponderance of the evidence and under a correct charge by the judge that the injury was not an accident, but that it was due to the negligence of plaintiff and his fellow-servants, and in the larger degree to the latter.
In Rushing v. R. R., 149 N. C., 160, this Court held: “Motion for nonsuit was properly denied; the case was properly one for the jury,” and added: “The court correctly charged, though excepted to, if the jury should find by the greater weight of the evidence that while the plaintiff was carrying the log he stumbled and fell, and while down his fellow-servants, who could have prevented the injury by holding the log, *649negligently and carelessly threw down tbeir end of the log when by the exercise of ordinary prudence they could haye held it and prevented the injury, then it would be chargeable to the negligence of the defendant’s employees, and if this negligmiee of his fellow-servants was the proximate cause of the injury, the jury would answer the first issue Yes.” The present case is stronger for the plaintiff, because 'he did not fall, but was in his proper place with his hand on top of the tie in the discharge of the duty assigned-him to depress it so that the tie might pass under the rail, and he was injured by the sudden, unexpected, and unnecessary exertion of too much strength by his coemployees in pushing the tie in a manner to prevent his taking his hand out of the way, which assuredly he would have done if notified. Otherwise, he would have been injured solely by his own negligence, which the jury negatived.
In Buchanan v. R. R., at this term, Hoke, J., says: “In Russell v. R. R., 118 N. C., 1098, and in cases before that time it was declared to be the correct principle that if, on a given state of facts, two men of.fair minds could come to different conclusions as to the existence of negligence, the question must be determined by the jury.”
In Forsyth v. Oil Mill, 167 N. C., 180, Brown, J., says: “It is well settled that the Court cannot direct a nonsuit and give judgment in favor of defendants, on whom no burden rests, when there is more than a scintilla of evidence tending to prove plaintiff’s contention or when there is evidence from which a reasonable person might draw a deduction to sustain the plaintiff’s contention.” In the ease at bar a jury of twelve impartial men found not only a scintilla, but by the preponderance, of evidence that this was not an accident, and that the injury was due to the negligence of the defendant, and the learned judge who tried the case drew the deduction, as “a reasonable person,” that there was evidence of negligence, submitted the case to the jury on the issue of negligence, and refused to set aside the verdict on an allegation that it was against the weight of the evidence. The thirteen men who heard this cause and saw the bearing of the witnesses on the stand and who were charged with the duty of passing upon the weight to be given their testimony must be presumed to be “reasonable persons.”
In Hodges v. Wilson, 165 N. C., 323, Walker, J., says: “The court properly refused to nonsuit the plaintiffs. There was evidence to support their contention, which upon such motion must be viewed most favorably to them,” citing Snider v. Newell, 132 N. C., 614; Bivings v. Gosnell, 133 N. C., 574; Boddie v. Bond, 154 N. C., 359; Ball v. McCormick, 162 N. C., 471. The same judge, in Walters v. Lumber Co., 165 N. C., 388, said: “Upon the motion to nonsuit, which was refused, there was evidence of defendant’s negligence, which should be construed most favor-' ably for the plaintiff.” The jury here found that both the plaintiff and defendant were negligent. There was no accident.
*650The fellow-servant act (Rev., 2646) is discussed and its history given in Coley v. R. R., 129 N. C., 407. In Sigmon v. R. R., 115 N. C., 181, the Court said: “The fellow-servant law applies to all railroad employees, whether injured in'running trains or rendering any other service”; and on page 184 said: “The plaintiff was injured by the negligence of a fellow-servant while working upon and repairing a bridge of the defendant.” That case was approved in Nicholson v. R. R., 138 N. C., 518, where it is said: “Such business is a distinct, well known business, with many risks peculiar tO' itself, and all the employees in such business, whether running trains, building or repairing bridges, laying tracks, working in the shops, or doing any other work in the service of an operating railroad, are classified and exempted from the rule which requires employees to assume the risk of all injuries which may be caused by the negligence of a fellow-servant.”'
The doctrine of assumption of risk has been eliminated by the fellow-servant act, Coley v. R. R., 128 N. C., 534; Cogdell v. R. R., 129 N. C., 398; Mott v. R. R., 131 N. C., 234, in which it is held that it is “error to submit an issue as to assumption of risk when the cause of action is injury to railroad employees.”
Laws 1913, ch. 6, sec. 3, provides that “In actions for damages against the common carrier to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risk of his employment in any case where the violation by such common carrier of any statute enacted for the safety of its employees contributed to the injury or death of such employee, or the death or injury was caused iy negligence
This action is not brought under the Federal act, but under the above State statute. The plaintiff put his hand on the cross-tie in the regular course of his employment and as he was instructed to do, to bear it down and guide it so that the end would go under the rail, and the force which shoved it too far came entirely from the two men at the west end of the cross-tie. .It was not an accident merely because the injury “was unusual, and unexpected,” because almost all injuries from negligence are thus caused. It is rarely indeed that an injury is caused intentionally by a fellow-servant.
His Honor charged the jury, and he is sustained by the evidence, that the plaintiff contended from the evidence that the jury should find that usually and ordinarily in shoving the ties they are only shoved in far enough to go by one rail, so that the tie could drop down and be pulled back under the other rail, but that on this occasion careless and negligent employees, without regard to the possible injury to the plaintiff, shoved the tie so far that it went too far and tilted over and mashed his hand, and that the ordinarily prudent man situated as the fellow-workmen on *651tbe west side of tbe plaintiff otigbt to bave apprehended, and would have apprehended, as reasonable men, that tbe injury would result from shoving that tie in tbe manner in which' they did. Tbe judge then gave tbe contention of tbe defendant, and tbe jury found with tbe contention of tbe plaintiff.
Tbe evidence was submitted to twelve impartial jurors, who found by preponderance of tbe evidence that tbe plaintiff was injured by tbe negligence of bis fellow-servants in tbe manner described, whose negligence was greater than bis, and there must bave been sufficient evidence to justify “a reasonable person” in so thinking, as tbe learned judge submitted tbe issue to them, and also refused to set aside tbe verdict on tbe alleged ground that it was against tbe weight of tbe evidence.