dissenting: As stated in tbe opinion of tbe Court, “Many of tbe courts deem tbe doctrine of assumption of risk a fiction adopted to throw upon tbe employee all tbe hazards of employment,” and such it undoubtedly and clearly is; but even tbat doctrine goes no further than to bold tbat tbe employee assumes “tbe ordinary risks incident to bis employment properly operated.” When there is negligence on tbe part of tbe employer, either in tbe manner of operation or in tbe nature of tbe appliances furnished, whether defective or not of tbe best kind in general use, or there is failure to furnish a reasonably safe place to work, and in similar instances, tbe employee does not assume tbe risk of such negligence on tbe part of tbe employer. To do so would be to exempt tbe employer from liability for negligence. There is one exception, and tbat is where tbe implement furnished is defective but tbe employer is ignorant of tbe defect and tbe employee, witb knowledge thereof, fails to inform tbe employer. Tbe rule as to what is “assumption of risk” is tbe same in tbe Federal as in tbe State courts.
In this case tbe defendant was “kicking” tbe cars back without any man on tbe rear car to giv.e notice of their approach, or to' stop them. This has always been held negligence on tbe part of tbe employer. Bradley v. R. R., 126 N. C., 735; Peoples v. R. R., 137 N. C., 98. This was held irrebuttable negligence, as to those not employees, in Purnell v. R. R., 122 N. C., 832, where tbe car was running backward at 4 miles an hour, this Court saying tbat when tbe train is rolling backwards (even though it is not “kicked”) there “must be both a man and a light *521at night and a man and a flag by day” on tbe rear car wbicb is thus rolling backward. That case has been cited numerous times, as will be seen in the Anno. Ed., the most recent cases being LeGwin v. R. R. (Hoke, J.), 110 N. C., 361; Mumpower v. R. R., 114 N. C., 742.
As to an employee, we have cases exactly “on all-fours” with the present case. In Lassiter v. R. R., 133 N. C., 244, the conductor in charge of the freight train was killed in a railroad yard by a shifting engine moving backwards at 4 miles an hour. The Court held that this was negligence on the part of the company, and that whether the conductor was guilty of contributory negligence was a defense to be submitted to the jury. There was no intimation that the conductor assumed the risk of the company’s negligence in running the car backward at 4 miles an hour without giving notice.
In Peoples v. R. R., 137 N. C., 97, it is said: “There was evidence that at the time the intestate was killed he was in the discharge of his duties as an employee of the defendant, with his mind absorbed in the attempt to mount the shifting engine coming towards him, with his back to the approaching box ears, which were giving him no warning of their approach, and which were not properly manned with a lookout upon the leading car,” and it was held that the refusal to nonsuit was proper, citing Lassiter v. R. R., 133 N. C., 247; Smith v. R. R., 132 N. C., 824.
In the present case the defendant was guilty of negligence in “kicking” back the car, also in not having a lookout on the rear end of the car and, further, in rolling back the car at 15 miles per hour. All these were acts of negligence, the risk of which, therefore, was not assumed by the plaintiff.
Furthermore, there was evidence, from the foot of the plaintiff being caught between the guard rail and the stock rail, that it was not properly constructed, res ipsa loquitur, and this was further evidence of negligence. Raper v. R. R., 126 N. C., 563. If thé jury should have so found, then the defendant had not furnished the plaintiff a safe place to work. This also was a risk which the plaintiff did not assume. The fact that he might or might not have known that the switch was defective did not place upon him the risk, for it does not appear that, knowing the defect, he had failed to furnish the information to the defendant, who, moreover, was not shown to have been ignorant of it.
Furthermore, while it is true the plaintiff had been working in the yard for eleven years, he did not thereby assume the risks of the negligent operation of the defendant. Lloyd v. Haynes, 126 N. C., 359, which, quoting the English authorities as well as our own, pointed out the wide distinction between the “knowledge of the danger” and “voluntary assumption of risk,” saying that “assumption of risk is a matter of defense, analogous to contributory negligence, to be passed upon by the *522jury, who are to say wb.eth.er the employee voluntarily assumed the risk; it is not enough to show merely that he worked on, knowing the danger.” That ease has been cited numerous times since (see Anno. Ed.) and has always been regarded as settled law.
Assumption of risk being a defense, the burden was on the defendant to prove it, and, therefore, also the motion to nonsuit should not have been allowed.
It may well be doubted if in all the cases that have come to this Court a more pathetic instance of mental anguish can be shown than in this case. The plaintiff was required to dismount from the car in motion which he had ridden down, and then to cross over the track where these other cars were coming and to get upon them while in motion. He had to cross the track in order to get on the car, which was coming down at about 15 miles per hour. His testimony is that “in attempting to cross the switch his foot was caught between the guard rail and the stock rail and fastened, and before he could get it out the front truck of the first cars passed over his foot, cutting off part of it. When plaintiff saw that he could not get his foot out he laid down between the rails and the front truck passed over his foot.” He further says that “he saw the cars coming towards him — saw the cars as they were cut loose when he was on top of the car on double track; that there were three cars in the cut, the first car being a gondola car loaded with scrap iron, destined for Richmond, Ya.; that the said cars were rolled about 15 miles per hour; that he knew there was no one on the car to stop them; that it was his duty to stop the cars, which was done by applying the brake when they had rolled to the place where he wanted them to go; . . . that it was his duty to get on the cars and to apply the brakes at the place he wanted to stop them.”
It would require the vivid mental vigor of Victor Hugo to depict the mental sufferings of the plaintiff with his foot caught in the defective track between the guard rail and the stock rail and fastened. Seeing the leading car heavily loaded with iron coming on and his helplessness, he laid down on the track, allowing the car to pass over him, cutting off his foot. For this excruciating suffering and the terrifying mental anguish attendant, the plaintiff was entitled to compensation. “Mental suffering accompanying physical injury has always been held a proper element of damages to be considered by the jury.” Britt v. R. R., 148 N. C., 39, citing Watkins v. Mfg. Co., 131 N. C., 536.
The court below properly denied the motion to nonsuit the plaintiff:
1. Assumption of risk is a defense and therefore is not ground for a nonsuit.
2. In Kenney v. R. R., 165 N. C., 103, Allen, J., said, “The word ‘kicking’ seems to be used in railroad parlance as synonymous with male-*523ing a flying switch,” and cites from 3 Elliott on Railroads (2 Ed.), sec. 1265(7, that “The practice of making running or flying switches is inherently dangerous, and is so considered by the courts in numerous decisions. The courts have not hesitated to hold railroad companies liable for injuries to trespassers on the track, thus inflicted, on the ground of negligence,” and held that where an employee was thus killed it was sufficient in an action for negligence to submit the case to the jury. It was negligence to “kick” the cars back and especially at the rate of 15 iniles per hour. It was negligence to require the defendant to mount such moving car and to send him across the track for that purpose in front of the car that he might get up on the other side.
3. It was evidence of negligence to go to the jury that in a crowded yard where men constantly had to cross the track in front of moving cars the space between the guard rail and the block rail was not filled up so as to avoid the plaintiff’s foot being caught and cut off. Raper v. R. R., 126 N. C., 563.
4. The defendant was not absolved from responsibility for its negligence in these several respects by the fact that employees oppressed by the strong necessity of earning a subsistence for themselves and families remain in the service of the corporation notwithstanding the knowledge that such negligence was daily used by the defendant. It is true that it was convenient to the company to save the expense of safer methods just as it would be economy not to use automatic car couplers or headlights or other necessary appliances — provided it was not required to pay for injuries and death occurring to the employees by such' misconduct.
It is because corporations are intangible and therefore not liable to imprisonment or physical punishment that the courts resort to compensation to employees as a measure of justice to them and of punishment as well as to the corporations when injuries and death occur by such disregard of the safety of employees as was shown by the defendant in this case.
As the Court says in its opinion, “Assumption of risk is a fiction.” It is created by the courts, and not by legislation, to throw upon the employee, as far as possible, liability for death or injuries sustained in the course of his employment. But such doctrine has never yet been extended to the point, in this State at least, that long continuance in such negligence and of so dangerous a nature should be deemed an exemption of the company from all liability. That would simply make continuance in wrongdoing a ground of exemption — the greater the wrong, the surer the safety from liability.
"While “assumption of risk” is still held by the Federal courts to be a defense, which is not to be “apportioned” as in cases of contributory *524negligence, it bas not been extended by any ease to require an employee to mount a car rolling 15 miles an hour, nor does it throw on bim liability for a defective switch in the railroad yard.
Beyond controversy, the injury to the plaintiff was caused by the defendant not giving bim time to go back and get upon the cars before they were shunted onto the sidetrack, or another member of the crew placed upon the rear end of the cars to stop them at any time, and in that the plaintiff was required to cross the track in front of cars rolling 15 miles an hour and mount the box car so that he might apply the brake to stop the cars on the switch track at a proper place. The defendant thus saved the expense of another necessary hand, but caused the loss of .plaintiff’s foot and might well have caused the loss of his life. The plaintiff was not injured in doing the act which caused his injury. He did not shunt the cars nor did he have anything whatever to do with kicking or shunting the cars and never had, according to the evidence. It is sardonic irony for the defendant to claim that the plaintiff was in any wise responsible for these matters over which he had no control.
There were decisions of the United States Supreme Court years ago which extended the' doctrine of assumption of risk to cover some instances of pure negligence on the part of corporations. But the decisions of the courts grow wider and wider and more just with the passage of the years. In Lochner v. New York, 198 U. S., 45, that Court (reversing the Court of Appeals of that State) held invalid an act of the State of New York which prohibited the employment of bakers for more than ten hours in a temperature of 120 degrees. Last year it held valid the “Adamson Act,” which prohibited the employment of railroad employees more than eight hours. Thus the thoughts of judges, as of other men, are “broadened with the process of the suns.” A statute expresses the public will as it grows from time to time, and when the courts create law they must do the same.
By judicial decree it was long held that if one among many thousands of railroad employees was injured in its service he could not recover if the injury was caused in any degree by the negligence of a fellow servant — upon the “fiction” that he knew the character of his fellow servants and by remaining in service assumed the risk of any one of them being negligent or careless! That was changed by statute, and then for years the party injured could not recover if he himself, in any degree, was guilty of negligence contributory to the injury. Now, by both State and Federal statutes, contributory negligence does not defeat an action against a railroad corporation, but the damages must be apportioned.
The courts have also, without statutory authority, created the doctrine of assumed risk. This should not be stretched to supply the place *525formerly occupied by the fellow servant doctrine or the doctrine of contributory negligence.
Till 1871 it was an indictable offense in England for two or more employees to ask for an increase of wages or to organize .a laborers’ union, and a strike was severely punishable. Today these unions everywhere are legal and the hours of labor are restricted by law, and in many States damages for injuries or death are awarded without the delay and cost of legal proceedings, while childhood is protected by an age limit.
We are moving out into more spacious times and into a larger field of vision. No court in the twentieth century should hold a railroad company free from liability when to reduce expenses for the increase of dividends to capital an employee is sent, as in this instance, on a dangerous errand across the track with a defective switch in which he is caught in front of cars rolling 15 miles an hour which he was ordered to mount and thus do the work of another man who should have been on the rear car already. The sense of justice of this age forbids such treatment. The lives and limbs of the employees who operate these great works of public necessity should not be exposed to such risks merely to increase dividends upon great aggregations of capital, nor should their wives and children be thus thrown upon the. charities of the world because the necessities of the husband and father force him to accept employment. Justice to the laborer is to the interests of the employer and the public.
The Rritish soldiers and sailors who fought at Blenheim, at Landen, at Talavera, at the storming of Badajos, at the Battle of the Nile, at Trafalgar, were rewarded with no pension (unless officers), but with a license to beg, and by a statute which made it a hanging offense for them to ask alms of a grateful country without such license. Today, not only in this country, but in England, disabled soldiers are pensioned. It is not just to apply to the soldiers of industry, upon whom the existence of civilization depends, and who are crippled in the discharge of their duty by unnecessary dangers imposed upon them, rules of law created by the courts, and not by any statute, at a time when labor had no rights which capital was bound to respect.
The judge below should be affirmed. A jury should find the facts.