For an orderly consideration of the case, we may array the contentions of the parties on the two appeals substantially as follows:
Upon the facts as they appear, the defendant company contends that its demurrer to the evidence and motion for judgment as of nonsuit should have been allowed for a number of reasons. In the first place, it is contended that the evidence discloses no negligence on the part of defendant, since, as contended, safety rule No. 103 (see supra), upon which it is conceived plaintiff’s case must wholly rest, does not apply to an employee such as plaintiff or to a movement of cars such as caused his injury; but, nevertheless, if it was meant so to apply, it had been abrogated by custom to plaintiff’s knowledge. And that at any rate, the plaintiff assumed the risk resulting in his injury and that his action should have been dismissed on that ground. Pertinent to these contentions, the plaintiff advances a number of reasons why the defendant should be held for negligence. Amongst them are the violation of the rules — especially No. 103 — established by the company for the safety of its employees; the failure of the engineer of the 4 o’clock crew to blow a warning signal when shoving a thirty car train into the yard; the failure of the 3 o’clock crew, especially the engineer, to give an emergency signal when he saw that the trains were approaching each other and when plaintiff’s position of peril was discovered.
PlaiNtiff’s Appeal.
The power of the court to declare the conduct of the plaintiff contribu-torily negligent as a matter of law when only that inference can be drawn from the evidence by reasonable minds has long been recognized by the courts of this State. Neal v. R. R., 126 N. C., 634, 36 S. E., 117; Hayes v. Western Union Telegraph Co., 211 N. C., 192, 193, 189 S. E., 499; Godwin v. R. R., 220 N. C., 281. The rule is generally prevalent (see 38 Am. Jur., p. 1054, note 15), and we see nothing in the procedure offensive to a trial under the Federal Act.
Negligence is a mixed question of law and fact. Nichols v. Fibre Co., 190 N. C., 1, 128 S. E., 471; Trustees of Elon College v. Banking Co., 182 N. C., 298, 109 S. E., 6; Jones v. American Warehouse Co., 138 N. C., 546, 51 S. E., 106. When the question is resolved by elimination of the element of fact, it becomes one of law. The factual element can be determined by admission, a finding by the jury, or application of the single inference test to the evidence, taken in the light most favorable to the plaintiff. Reeves v. Staley, 220 N. C., 573; Luttrell v. Mineral Co., 220 N. C., 782.
The common law rule obtains in the state jurisdiction with respect to actions brought and tried under state laws, and in such an action the proximate contributory negligence of the plaintiff, however small the *375contribution, will bar recovery, and justify the withdrawal of the case from the jury under the single inference rule when the evidence warrants it. The Federal Employer’s Liability Act expressly departs from the common law rule and introduces a somewhat modified doctrine of comparative negligence under which contributory negligence is not a bar to recovery, but is taken into account on the quantum of damages. But it is still competent for th,e court, with due and proper consideration of the phases of the evidence bearing upon the point, to instruct the jury that if they find by the preponderance of the evidence the facts to be as the evidence tends to show, the conduct of the plaintiff would constitute contributory negligence and they should answer the pertinent issue accordingly. This is no more than a compliance with the duty of the court to apply the law to the evidence. The formula employed, if not offensive in other particulars, is not important. This exception of plaintiff cannot be sustained.
Plaintiff excepts to the instruction that the jury should take into consideration the contributory negligence of 'the plaintiff, if he should be found to be negligent, on the issue of damages, and diminish the award in proportion to the amount of negligence attributable to plaintiff. We assume that plaintiff excepted to this instruction in order to protect his position under the exception just considered. At any rate, the instruction given to the jury correctly applies the law under the Federal statute and in accordance with authoritative decisions. Raines v. R. R., 169 N. C., 186, 85 S. E., 294; St. Louis & S. F. R. Co. v. Brown, 241 U. S., 223, 60 L. Ed., 936, Annotation 12 A. L. R., 705; Moore v. R. R., 185 N. C., 189, 116 S. E., 409; Moore v. Iron Works, 183 N. C., 438, 111 S. E., 776; Davis v. R. R., 175 N. C., 648, 96 S. E., 41; Horton v. R. R., 157 N. C., 146, 72 S. E., 958; Norfolk & etc. R. Co. v. Earnest, 229 U. S., 114, 122, 57 L. Ed., 1096.
DEFENDANT’S APPEAL.
In addition to his other designations of negligence, the plaintiff points out that if Rule 103 had been observed, and a brakeman posted in a conspicuous position on the lead car, plaintiff’s injury could have been obviated by a mere call from the brakeman — certainly by proper warning or signal either to the plaintiff or others engaged in operating the train.
Numerous experienced railroad men, amongst them a number of the defendant’s employees, who had served for periods of time up to 20 years or more, during which the rule had remained unchanged, testified that according to common usage and understanding of railroad men, the rule applied to movements of cars such as that from which the plaintiff received his injury. Also it may be inferred from the evidence that the operation of this train was one continuous extended movement from the *376lower yard into and within the Salem yard by which the train of thirty cars was pushed into the Salem yard and into a track designated by Yardmaster Samuel; and that the string of cars was to be left there to be broken up by switching movements by another crew. There is no contradiction to the testimony that the duties of the 4 o’clock crew, which handled the “cut” from the lower yard, ended when the cars were so placed, and that the train was then turned over to another crew.
We think the rule upon its face is addressed to dangers and to the prevention of injuries in an area of operation into which the public generally had little cause to intrude, but in which the employees are peculiarly liable to injury if the proper precautions are not taken. Certainly, the public has nothing to do with the movement of cars in a freight yard, whether an “extended movement” or a “switching movement.” We are of the opinion that the rule properly applies to employees of the company whose safety may be imperiled by its nonobservance, and that the plaintiff was within its intended protection.
There is some confusion in the testimony with regard to the extent to which the rule was observed or whether it had been abrogated by custom. The evidence, however, does not justify the conclusion as a matter of law that the rule had been abrogated by custom as -to this particular movement of the train, and to the knowledge of plaintiff, and this question was properly left to the jury. We think upon the whole record, there is ample evidence from which the negligence of the defendant might be inferred.
We turn to defendant’s contention that whatever negligence there was was covered by assumption of the risk. However, with reference to the rule we have been discussing, it is to be noted that defendant seems to concede that an employee does not ordinarily assume the risk of the violation by a fellow employee of a rule designed for his protection. We discuss briefly the question raised as to how far the doctrine of assumption of risk applies to the negligence of a fellow employee. Frankly, we think the fact that the injury arose from the negligence of a fellow servant, if it did so arise, has little to do with the application of the doctrine of assumption of risk as the law existed before the 1939 amendment below noted. Negligence of a fellow employee did not bar assumption of risk, but it did not aid it. The applicable principle is made clear in Reed v. Director General of Railroads, 258 U. S., 92, 66 L. Ed., 480, in which the court interprets Seaboard A. L. R. Co. v. Horton, infra, and applies the rule as clarified:
“Seaboard Air Line R. Co. v. Horton — often followed- — ruled that the Eederal Employers’ Liability Act did not wholly abolish the defense of assumption of risk as recognized and applied at common law. But the opinion distinctly states that the first section ‘has the effect of abolishing *377in this class of cases the common-law rule that exempted the employer from responsibility for the negligence of a fellow employee of the plaintiff.’ The Second Employers’ Liability Cases (Mondou v. New York, N. H. & H. R. Co.), 223 U. S., 1, 49, 56 L. Ed., 327, 345, 38 L. R. A. (N. S.), 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875, declared that ‘the rule of negligence of one employee, resulting in injury to another, was not to be attributed to their common employer, is displaced by a'rule imposing upon the employer responsibility for such an injury, as was done at common law when the injured person was not an employee.’ And in Chicago, R. I. & P. R. Co. v. Ward, 252 U. S., 18, 64 L. Ed., 430, 40 Sup. Ct. Rep. 275, we said: ‘The Federal Employers’ Liability Act places a co-employee’s negligence, when it is the ground of the action, in the same relation as that of the employer upon the matter of assumption of risk.’ See New York C. & H. R. R. Co. v. Carr, 238 U. S., 260, 59 L. Ed., 1298, 35 Sup. Ct. Rep. 780, 9 N. C. C. A. 1; Chesapeake & O. R. Co. v. DeAtley, 241 U. S., 310, 313, 60 L. Ed., 1016, 1019, 36 Sup. Ct. Rep. 564.”
The theory upon which the Act is held to modify the common law rule that exempted the employer from responsibility for the negligence of a fellow employee of the plaintiff is explained as follows: “To hold otherwise would conflict with the declaration of Congress that every common carrier by railroad, while engaging in interstate commerce, shall be liable to the personal representative of any employee killed while employed therein, when death results from the negligence of any of the officers, agents, or employees of such carriers.”
Plaintiff was injured 7 July, 1939. About a month later — on 11 August, 1939 — the Act was amended by expressly providing that an employee within its terms was not to be deemed to have assumed the risk of injury by the negligence of officers, agents or employees of his employer, thus abrogating the doctrine of assumption of risk as applied to a fellow servant; but the plaintiff is at least entitled to the incidence of the law upon his case as commonly understood and interpreted at the time of his injury. As the law then stood, the defense of assumption of risk was available in an action involving negligence of a fellow servant, except as excluded expressly in the Act, assuming that the facts were sufficient to establish assumption of risk under the recognized rules pertaining to that doctrine. Moore v. Chesapeake & O. R. Co., 291 U. S., 205, 78 L. Ed., 755; Chicago G. W. R. Co. v. Schendel, 267 U. S., 287, 69 L. Ed., 614; Great Northern R. Co. v. Donaldson, 246 U. S., 121, 62 L. Ed., 616; Seaboard Air Line R. Co. v. Horton, 239 U. S., 595, 60 L. Ed., 458.
In all these cases, the rule has been kept within the cardinal principle which limits the extent of the employee’s undertaking under his contract *378of employment; — that is, that he assumes only the ordinary risks of the employment, or those which are at the time obvious or known and appreciated.
This principle is aptly expressed in Cobia v. R. R., 188 N. C., 487, 491: “By the common law, the employee assumes the risks normally incident to the occupation in which he voluntarily engages; other and extraordinary risks and those due to the employer’s negligence, he does not assume until made aware of them, or until they become so obvious, and immediately dangerous that an ordinarily prudent man would observe and appreciate them.”
In this case (Cobia v. R. R., supra), there is an enlightening discussion of this whole subject, and Chesapeake & Ohio Ry. v. DeAtley, 241 U. S., 311, 60 L. Ed., 1016, where the principle is applied under the Employer’s Liability Act, is quoted with approval: “An employee is not bound to exercise care to discover extraordinary dangers arising from the negligence of the employer or of those for whose conduct the employer is responsible, but may assume that the employer or his agents have exercised proper care with respect to his safety until notified to the contrary, unless the want of care and the danger are so obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them.” Seaboard Airline Railway v. Koenecke, Admr., 239 U. S., 352, 60 L. Ed., 324; Railroad v. Mangan, 278 F., 85.
In Covington v. R. R. (S. C.), 155 S. E., 438, the following definition of ordinary risk was quoted with approval from 39 C. J., 704, 705: “Risks and perils ordinarily incident to the employment are such as are to be expected from the particular character of the service in which the employee is engaged, and have generally been defined as those which remain after the master, or one rightly exercising the authority of the master, has exercised due care to prevent or avoid . . . which cannot be obviated or avoided by the exercise of due care on the part of the master.” Reed v. Director General, supra; Railroad v. Ward, 252 U. S., 18, 64 L. Ed., 430; Railroad v. DeAtley, supra.
This agrees with the observation of the Court in Hamilton v. R. R., 200 N. C., 543, 158 S. E., 75: “The servant does not assume extraordinary and unusual risks of the employment, and he does not assume the risks which would not have existed if the employer had fulfilled his contractual duty.”
Further quoting from Cobia v. R. R., supra: “The negligence of fellow-servants is withdrawn from the class of assumed risks in cases of unusual and instant negligence, and under circumstances which afforded the injured employee no opportunity to know of the conditions or appreciate the attendant dangers. This doctrine of assumption of’ risk is based *379upon knowledge or a fair and reasonable opportunity to know, and usually tbis knowledge and opportunity must 'come in time to be of use.’ ”
In Batton v. R. R., 212 N. C., 256, 193 S. E., 674, we find: “Assumption of risk is founded upon knowledge of the employee, either actual or constructive, of the risks or hazards to be encountered in the performance of his duty, and his consent to take the chance of injury therefrom. It is based upon the contract of employment and is distinguished from contributory negligence, which is solely a matter of conduct.”
Authoritative decisions under the act make it clear, we think, that the employee does not assume the risk of unusual or extraordinary negligence or negligence presenting an unpredictable emergency, or one where the danger involved is not obvious or not known and appreciated.
Since it is apparent that not all negligent acts of a fellow servant come within the category of assumed risk, we think it would be taking a somewhat complacent view of the law to hold that the violation of a rule which is intended for the safety of employees, and obviously necessary or highly important in that respect, might be classed as ordinary negligence, or that the manner of its happening, as pictured'in the evidence, is consistent with the theory of assumption of risk as defined or explained in the cited eases.
We are of the opinion that the court below took the proper course in submitting the evidence to the jury, with appropriate instructions, and defendant’s motion was properly overruled.
We find no error on either appeal.
On plaintiff’s appeal,
No error.
On defendant’s appeal,
No error.