We do not understand that in order for an employee of a railroad to be entitled to the benefits of the Federal Employers’ Liability Act such employee at the precise moment of the injury must have been engaged in interstate rather than in intrastate commerce. U.S.C.A. 45, section 51, as amended in 1939; Robinson v. Pennsylvania R. Co., 214 F. 2d 798; Agostino v. Pennsylvania R. Co., D.C.N.Y. 1943, 50 F. Supp. 726; Albright v. Pennsylvania R. Co., 183 Md. 421, 37 A. 2d 870, certiorari denied 323 U.S. 735, 89 L. Ed. 589; Scarborough v. Pennsylvania R. Co., 154 Pa. Super. 129, 35 A. 2d 603.
The 1939 amendment to section 51 of U.S.C.A. 45 added the following paragraph: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce ; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.”
In Robinson v. Pennsylvania R. Co., supra, the Court held that a railroad carpenter who was injured while repairing a highway bridge over the defendant’s railroad which carried interstate rail movements, the employee’s work so directly or closely and substantially affected interstate commerce as to bring him within the coverage of the Federal *40Employers' Liability Act, although the bridge was intrastate in character.
In the case of Albright v. Pennsylvania R. Co., supra, Clayton L. Albright was employed by the railroad as a special policeman whose duty it was to guard and examine cars in the yard of its terminal in Baltimore and to ascertain whether the seals had been broken on the cars. If he found a seal broken, it was his duty to apply another seal to the car in order to safeguard the lading, and generally to see that no theft was committed. While engaged in guarding interstate as well as intrastate shipments, he sustained an injury that resulted in his death. The Court held that under the provisions of the 1939 amendment to section 51 of the U.S.C.A. 45, the right to recover for his injury and death was limited to the Federal Employers’ Liability Act.
The evidence on the present record shows that between Sanford and Fayetteville on this particular run, conductor Futrelle and his crew had handled five cars destined for interstate movement. Consequently, we hold that part of the duties of conductor Futrelle required him to engage in the furtherance of interstate commerce, and whatever rights his personal representative may have, if any, against the defendant railroad are subject to the provisions of the Federal Employers’ Liability Act.
In determining whether or not the court below committed error in granting the defendant’s motion for judgment as of nonsuit, we are not concerned with the question of contributory negligence. Under the provisions of the Federal Employers’ Liability Act, U.S.C.A. 45, section 53, contributory negligence is not a bar to recovery, but, in the event of a recovery, the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. Graham v. Atlantic Coast Line R. Co., 240 N.C. 338, 82 S.E. 2d 346; Cobia v. Atlantic Coast Line R. Co., 188 N.C. 487, 125 S.E. 18; Davis v. Southern R. Co., 175 N.C. 648, 96 S.E. 41.
Therefore, the sole question before us is whether or not the plaintiff’s evidence is sufficient to go to the jury on the question of actionable negligence on the part of the defendant. Wilkerson v. McCarthy, 336 U.S. 53, 93 L. Ed. 497; Eckenrode v. Pennsylvania R. Co., C.C.A. Pa. 1947, 164 F. 2d 996, affirmed 335 U.S. 329, 93 L. Ed. 41.
The plaintiff argues and contends that in pushing 27 cars towards the 12 standing empties to which the train was to be coupled, with a cement box car immediately in front of the engine, obscuring the headlights, was in conflict with I.C.C. Rule 231 (a) through (f), especially section (e) thereof, and, without regard to any other acts of negligence, is sufficient to take the case to the jury, citing Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574, 89 L. Ed. 465.
*41Section (e) of I.C.C. Rule 231 reads as follows: “Each locomotive used in yard service between sunset and sunrise shall have two lights, one located on the front of the locomotive and one on the rear, each of which shall enable a person in the cab of the locomotive under the conditions, including visual capacity, set forth in section (a), to see a dark object such as there described (as large as a man of average size standing erect) for a distance of at least 300 feet ahead and in front of such headlight; and such headlights must be maintained in good condition.”
In the last cited case, the defendant had failed to have a light attached to the rear of its engine (in which direction it was being operated at the time of the accident), as required by the rules, and the Court said: “The deceased met his death on a dark night, and the diffused rays of a strong headlight even though directly obscured from the front, might easily have spread themselves so that one standing within three car-lengths of the approaching locomotive would have been given warning of its presence, or at least so the jury might have found. The backward movement of the cars on a dark night in an unlit yard was potentially perilous to those compelled to work in the yard.”
In the present case the headlight was on, and an oscillating light. Moreover, the movement of the train was being made in accord with the express instructions of the plaintiff’s intestate and at a time when he had said he would be up on the “hill.” The place where conductor Futrelle was killed was some 40 feet north of the loading chute, in a well lighted area, on the opposite side of the train from where he knew the signals with respect to the movement of the train would be given. The cars which conductor Futrelle said he was going to check and where he would be when his crew came back to couple with the 12 empty cars on the by-pass track, were located near the south end of the track which was approximately 1,000 feet south of the loading chute.
The plaintiff’s evidence, in our opinion, supports the view that the members of the train crew of the defendant at the time of the death of plaintiff’s intestate were performing their duties in the usual and customary manner theretofore followed in the Becker yard and according to the express instructions given to them by conductor Futrelle. Hence, we hold that the evidence is insufficient to establish actionable negligence on the part of the defendant.
The ruling of the court below is
Affirmed.
JOHNSON, J., not sitting.