dissenting: On 20 December, 1914, the plaintiff' was a hostler in the yards of the Southern Eailway Company, the lessee of the defendant, at Charlotte. Having finished his. work for the day, and it being nearly dark, he started home along the path which had been used by employees of the company for twenty years past. This path crossed a number of railroad tracks, on one of which there was a train of dead cars, standing on what is known as the “set-off” track. The ears ready for movement were on another track, known as the “pick-up” track. When the plaintiff came to the cars on the set-off track he stopped, looked, and listened, according to his evidence, which must be taken as true on- this nonsuit, in order to locate the yard engine. There was no bell, whistle, or other signal, nor did the plaintiff see any switchman or brakeman with lights which would have *650indicated tbat these cars were about to be moved. But, on the contrary, be beard tbe yard engine, the only engine which had a right under the rules and customs of the railroad company to move these cars, in another part of the yard some 175 or 200 yards away.
The plaintiff also -testified that under the rule and custom of the defendant, when there was a train of dead ears on this “set-off” track across the path, the employees were in the habit of crossing under them, over them, or between them. There was a beaten path at this point which had been thus used by the employees of the defendant ever since the round-house was built in 1896. The plaintiff seeing no switchman with lights on the train of cars, it being dark at this time, and hearing the yard engine, which alone had the right to move these cars, some distance away, started to cross underneath the- drawhead of these cars. Immediately the road engine struck this train of cars with violent force, running one wheel over the plaintiff’s leg and cutting it off. The engineer of this road engine testified that he had started to get his train, which was 400 or 500 yards away in another section of the yard, and was backing his engine, and that he could not see in the yards nor could the switchman see, and that it was his engine that struck the train of dead cars which caused the plaintiff’s injury, and that he did not know that this train of dead cars was on this “set-off” track, and further that if he or the switchman had known this, the switchman would not have thrown the engine onto this track, but would have followed another track which was open.
. After the road engine struck this train of cars by reason of this mistake of the engineer and switchman, it moved back off the set-off track to the other track, which was clear and which should have been used, and wént to another section of the yard and got the train of cars which had been made up for it to carry to Greenville, S. C.
Upon this evidence the switchman of the engineer threw the wrong switch and ran the road engine on the wrong track, contrary to the custom and rules of the yard, and cut off the plaintiff’s leg. This engine was run backward at a rapid and reckless rate of speed in violation of the rules of the company and in violation of law, without any notice being given of its movement, either by ringing the bell or blowing the whistle or giving any other warning or notice of its approach and movements. There was evidence that the employees, including the bosses, had been in the habit of crossing this track of dead cars at that place since 1896, and that the yard foreman had done so but a few moments before. ' The evidence thus stated succinctly was very full and complete and was amply sufficient to go to the jury to show negligence on the part of the defendant.
*651In Meroney v. R. R., 165 N. C., 611, it is said: “This case showed greater negligence on the part of the defendant than Edge v. R. R., 153 N. C., 213. In that case an employee of the defendant was injured while crossing the track underneath the coupling of two box cars. Just before going into this place of danger he had seen an engine standing near the car with steam up and the engineer looking towards him. The "Court held that it was a question for the jury whether the defendant could have avoided injuring the plaintiff by the use of ordinary care. In Hudson v. R. R., 142 N. C., 198, it was held culpable negligence where the defendant cut loose a ear on a spur-track on a down grade, whereby it crashed into five other cars with sufficient force to drive them, as in this case, causing the death of the plaintiff. In Beck v. R. R., 146 N. C., 455, where the plaintiff started to go between a string of cars in accordance with the established custom, was caught and injured by the sudden attachment, without lookout, signal, or warning of the engine, unseen by him, and in a manner in which he could not reasonably have anticipated, the Court held that the negligence of the defendant was the proximate cause of the injury, and that if the question of contributory negligence should arise upon the facts, it was one for the jury.”
In Williamson v. R. R., (Va.) 113 Am. St., 1032, it is held: “If the right of way of a railroad corporation at a particular -point has long been in use as a walkway, and this is well known to the company, it ig under the duty of using reasonable care to discover and not to-injure persons whom it might expect to be on its track at that point.”
There was sufficient evidence of negligence to be submitted to the jury upon all our precedents, in some of which the evidence for the plaintiff was by no means as strong as in this case. Whether there was contributory negligence was a" matter of defense, and should have been submitted to the jury, for the evidence of the plaintiff showed that he looked and listened and used the track as othpr employees, including the bosses, had been in the habit of doing for many years, and having first ascertained that. the only engine which had a right to move on that track was in another part of the yard, some distance away.
Besides, the defendant in its answer alleged: “If the plaintiff was-then in the service of the Southern Eailway Company, both he and said company were at that time engaged in interstate commerce, and the defendant alleges that the act of Congress, commonly known as the Federal Employers’ Liability Act, applies to and governs this case.” If so, contributory negligence is not a defense, but the case should have been submitted to the jury to apportion the abatement on that account from the amount of damages otherwise recoverable. Tie plaintiff was unquestionably in the service of the defendant from the *652time be entered tbe yard of tbe defendant on bis way to bis work, and until be left tbe yard on bis way borne, wbicb be bad not done wben be was struck and injured by tbe negligence of tbe engineer in running bis engine on tbe wrong track without lights or signal and injuring tbe plaintiff wben be was using tbe accustomed way in crossing tbe track of dead cars, as bad been done by all tbe employees to tbe knowledge and with tbe implied permission of tbe defendant for eighteen years — since 1896.
In Zachary v. R. R., 156 N. C., 496, where an employee was killed in crossing a track on tbe railroad yard (wbicb was reversed on writ of error, but not on tbe question of negligence or contributory negligence), Mr. Justice Brown said: “Was tbe evidence of negligence sufficient to justify tbe court in submitting tbe matter to tbe jury? We think so. Tbe evidence offered by tbe plaintiff tends to prove that tbe deceased was compelled to cross the several tracks of tbe railroad to go from bis engine to bis residence; that it was customary for all employees to pass to and fro over these tracks; that it was dark at tbe time, and tbe switching engine was running backwards; tender foremost, from 15 to- 20 miles an hour. Two witnesses testify that there was no light whatever on tbe end of tbe tender that was moving forward, nor any flagman there. This is ample evidence of negligence to go to tbe jury. Ray v. R. R., 141 N. C., 84; Smith v. R. R., 132 N. C., 819; Purnell v. R. R., 122 N. C., 832.”
In LeGwin v. R. R., 170 N. C., 359, where tbe plaintiff was inju-red by going between two railroad cars, tbe Court held: “It was negligence for tbe railroad company, without warning or signal and without a proper lookout on tbe train or in tbe yard to warn tbe plaintiff, to back tbe engine and strike tbe car wbicb injured tbe plaintiff.” In that case tbe Court held that contributory negligence was not shown by evidence that bad tbe plaintiff gone 60 or 70 feet around tbe car be could have crossed in safety. To same effect, R. R. v. Price, 221 Fed., 228.
There was no evidence of assumption of risk, for this is not a risk incident to tbe nature of tbe employment, but tbe injury was caused by tbe negligence of the defendant company in running over tbe plaintiff wben passing out of tbe yards in tbe accustomed manner, wbicb had been used so many years by tbe employees.
The case should have been submitted to the jury upon the evidence to pass upon tbe-issues of negligence and contributory negligence, and, if these were found in favor of the plaintiff, to assess tbe damages.