Contributory negligence is not a defense in an action to recover damages on account of negligence under the Employer’s Liability Act, and it cannot, therefore, be taken into consideration on a motion for judgment of nonsuit.
We can deal only with the evidence relied on to prove the negligence of the defendant, which must be construed most favorably for the plaintiff, and when so considered, we are of opinion evidence was introduced on the trial fit to be considered by the jury.
The evidence tends to prove that the deceased was where he-had the right to be in the performance of a duty; that he was engaged in reading telegrams; that he was standing between two parallel tracks close to-*651getber; that a train was passing along one of these tracks going west and that the train which killed the deceased passed on the other going east; that the place where the deceased was standing was dangerous, and one could not stand there with trains passing on both tracks without being struck; that the train was running with the tender in front of the engine so that the engineer could not see ahead; that there was no watchman on the front of the train, or if there was, he was not keeping a lookout; that no signal was given of the approach of the train, and the inference is permissible that if a lookout had been maintained or a signal given, the deceased would have been warned of his danger, or the train would have been stopped in time to avoid the injury.
The evidence is stronger for the plaintiff than in Lassiter v. R. R., 133 N. C., 244, in which a judgment of nonsuit was reversed on appeal, in that the employee here was in a more dangerous situation, which could have been readily observed, and this is the important and material fact which distinguishes this case from Aerkfetz v. Humphrey, 145 U. S., 418, an authority relied on by the defendant.
In the Lassiter case the deceased, “a freight conductor in the defendant’s service, was standing between the main track and a sidetrack in the defendant’s yard in the town of Henderson, giving instructions to the hands on top of the box cars as to the movements of his train. The train of which he was in charge was on the main track and backing towards him. He was looking at it as he gave the signals to the hands. On the sidetrack a shifting engine with two box ears was moving backwards at the rate of about four miles an hour in the direction of the intestate, his back being turned to the shifting engine. When the box cars attached to the shifting engine were within about twenty steps of the intestate he stepped from a safe place between the track upon the sidetrack, with his back towards the shifting engine, and when engaged in giving orders to the men on the top of the box cars of his own train he was run over and killed by the box cars attached to the shifting engine. A person, Henry Thomason, who chanced to be passing by, endeavored to attract the attention of the intestate by hallooing to his peril, but to no avail. There was no watchman on the box cars of the shifting engine. The engineer, from his cab, could not have seen the deceased on the sidetrack. There was no evidence that the bell was not ringing, nor any that the whistle was not sounding.”
The court held that the question of the defendant’s liability ought to have been submitted to the jury, and among other things, said: “It is the duty of railroad companies to keep a reasonable lookout on moving trains. WRen Thomason saw the intestate step upon the sidetrack the end of the box car attached to the shifting engine was twenty steps from him and the cars were moving at the rate of four miles an hour. *652Tbe same witness said that tbe intestate bad time to bave gotten off if be bad beard tbe witness wben be ballooed to bim. Tbat evidence was competent and fit to bave been submitted-to tbe jury upon tbe question of tbe last clear cbance of tbe defendant — tbat is, wbetber if botb tbe plaintiff and tbe defendant bad been negligent tbe defendant could bave prevented tbe death of tbe intestate by tbe use of means at band or tbat reasonably ought to bave been at band.” . . .
“In tbe present case it was of tbe utmost importance for tbe defendant to bave kept a lookout other than tbat which the engineer ordinarily might keep, for tbe engineer here could not see in front of bim 'by reason of tbe box cars, although tbe track was straight for some distance, and tbe view but- for tbe box cars unobstructed.”
This case has been.ápproved ten or twelve times, tbe latest cases referring to it being Talley v. R. R., 163 N. C., 572; Meroney v. R. R., 165 N. C., 612; Norman v. R. R., 167 N. C., 538.
Tbe charge on tbe issue of negligence is erroneous. It is correct in so far as it imposes on tbe defendant tbe duty of keeping a lookout, but it in effect ignores tbe evidence of tbe defendant tending to prove tbat tbe deceased was looking in tbe direction of tbe train as it approached; tbat be was in a place of safety; tbat there was ample space between tbe track for one to stand without being injured with trains passing on botb tracks; tbat tbe train going west bad already passed tbe deceased; tbat if a lookout bad been maintained there was no need of giving- a signal, and no reason to stop because be was in no danger, and it omits proximate cause as a fact to be found under tbe third issue.
A similar instruction has been condemned at this term in Ware v. R. R., and in Lee v. Utilities Co., in which tbe authorities are reviewed, tbe Court saying in tbe last case: “Tbe court failed to tell tbe jury tbat the. negligence of defendants must bave been tbe proximate cause of tbe injury in order to be actionable, so tbat tbe issue could be answered 'Yes.’ ”
“In order to establish actionable negligence, tbe plaintiff is required to show by tbe greater weight of tbe testimony, first, tbat there has been a failure to exercise proper care in tbe performance of some legal duty which tbe defendant owed tbe plaintiff, under tbe circumstances in which they were placed, proper care being tbat degree of care which a prudent man should use under like circumstances and charged with a like duty; and second, tbat such negligent breach of duty was tbe proximate cause of tbe injury — a cause tbat produced tbe result in continuous sequence and without which it would not bave occurred, and one from which any man of ordinary prudence could bave foreseen tbat such a result was probable under tbe facts as they existed. Ramsbottom v. R. R., 138 N. C., 38.”
*653There is also error in the instruction on the issue of damages. R. R. v. Tilghman, 237 U. S., 500.
In the Tilghman case the Court, after holding that “where the casual-negligence is attributable partly to the carrier and partly to the injured employee, he shall not recover full damages, but only a diminished sum bearing the same relation to the full damages that the negligence attributable to the carrier bears to the negligence attributable to both; the purpose being to exclude from the recovery a proportional part of the damages corresponding to the employee’s contribution to the total negligence” deals with the instruction Under review as follows:
“At the trial the court instructed the jury that if they found the plaintiff was injured through the concurring negligence of the railway company and himself, they should determine the full amount of damages sustained by him, ‘and then deduct from that whatever amount you think would be proper for the contributory negligence.’ This was reiterated in different ways and somewhat elaborated, but the fair meaning of all that was said was that a reasonable allowance or deduction should be made for the plintiff’s negligence and that it rested with the jury to determine what was reasonable. No reference was made to the rule of porportion specified in the statute or to the occasion for contrasting the negligence of the employee with the total casual negligence as a means of ascertaining what proportion of the full damages should be excluded from the recovery. On the contrary, the matter of diminishing the damages was committed to the jury without naming any standard to which their action should conform other than their own conception of what was reasonable. In this there was a failure to give proper effect to the part of the statute before quoted.' It prescribes a rule for determining the amount of the deduction required to be made and the jury should have been advised of that rule and its controlling force.
“It results that the objection to the instructions upon this subject was well taken and should have been sustained.”
The error pointed out is present in the instruction, to which the defendant excepts, and the two cases cannot be distinguished.
New trial.