#### JAMES TROXLER v. SOUTHERN RAILWAY COMPANY.

(Filed 2 November, 1927.)

1. Actions — Federal Employers’ Liability Act — Courts—Federal Decisions —Practice—Procedure.

Upon tbe trial of an action brought in tbe State court to recover damages against a railroad company for personal injuries alleged to have been negligently inflicted, tbe decisions of tbe Federal Court control, but tbe rules of practice and procedure in tbe State court are followed.

2. Master and Servant — Employer and Employee — Evidence—Assumption of Risks — Issues.

Evidence tending to show that tbe plaintiff, in tbe scope of bis employment with tbe defendant railroad company, was engaged in repairing a part of a machine used for loading rails upon tbe defendant’s cars, and be was in a position of safety except for tbe negligence of the defendant’s other employees, acting under tbe supervision of tbe defendant’s vice-principal or *alter ego,*which resulted in a part of tbe loader flying around and striking tbe plaintiff causing the injury in suit, and tbe work upon which tbe plaintiff was engaged was not obviously or intrinsically dangerous otherwise: *Held,*insufficient to raise an issue of assumption of risks.

3. Same — Negligence—Nonsuit.

*Held,*upon the facts of this appeal, defendant’s motion as of nonsuit upon tbe evidence was properly denied.

Appeal from *Harding,*Jand a jury, at February Term, 1927, of Rockingham.

No error.

This was an action for actionable negligence, brought by plaintiff against defendant for damages under the Federal Employers’ Liability Act. The plaintiff, an employee of defendant, in substance, alleged: That defendant was using a rail-loader in picking up steel rails and placing them on flat cars. The loader was built on a flat ear, the crane, or boom, was so constructed as to swing around and pick up the rails and place .them on the car. The loader was operated by compressed air from the engine attached to the work train. A steel cable was fastened to the boom or crane and wound around a large drum, and was part of the equipment of the loader and used in lifting and placing the rails. The cable fastened to the loader had come out of adjustment. The plaintiff was working on the cable, fastening certain bolts, and the defendant negligently caused the boom or crane to swing around and strike the plaintiff on the left leg below the knee inflicting permanent injury.

.The defendant denied negligence, plead assumption of risk and contributory negligence and diminution of damages.

*447Tbe issues submitted to tbe jury aud tbeir answers thereto were as follows:

“1. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: Yes.

“2. Did tbe plaintiff, by bis own negligence, contribute to bis own injury, as alleged in tbe answer? Answer: Yes.

“3. Wbat damages, if any, is plaintiff entitled to recover of tbe defendant ? Answer: $1,000.”

*P. T. Stiers for plaintiff.*

*Brown & Trotter for defendant.*

OlaeicsoN, J.

Tbe carefully prepared supplemental brief of defendant, giving authorities that “tbe provisions of tbe Federal Employers’ Liability Act are applicable to tbe facts in this case,” was unnecessary. It was brought under tbe act. Tbe complaint so states. Tbe decisions of tbe Federal Courts were applicable in tbe trial of this action. “Tbe decisions of tbe Federal Courts control over tbe State Courts in all actions prosecuted in tbe State courts, but tbe rules of practice and procedure are governed by tbe laws of tbe States where tbe cases are pending.” *Inge v. R. R.,*192 N. C., at p. 526.

Plaintiff testified, “We bad taken tbe cable loose, and I was putting it back on and tightening some bolts — I sitting straddling tbe drum. . . . Tbe foreman was Mr. L. B. Davis. I do not see him here. He was standing up there when I was working, and be was directing tbe work; be was a white man,'‘and my boss. . . . When I was working there with my bead down some of tbe rest of tbe men untied tbe boom and swung it around over tbe flat car that was connected with tbe loader: At tbe time I went to work this cable was tied. It was tied around with tbe rail-loader, with ropes around. Tbe boom (or crane) wheeled around and fell on tbe main line. We were standing on tbe sidetrack, tbe rail-loader was, and it fell across tbe main line, and when it bit tbe ground that knocked tbe boom stand out of socket, and that struck me on tbe leg and cut a long gash on my leg. . . . When you fasten tbe chains tbe boom can’t swing around. . . . Tbe boom could not swing around if tbe chains were fastened. Tbe chains were not fastened at tbe time it swung around and broke my leg. There was a rope fastened at tbe time to it, but no one bad bold of tbe rope; they turned it loose or let it get away from them. . . . Tbe boom was fastened down when I went to work on tbe cable that morning.”

Tbe plaintiff was working with bis bead down. Tbe foreman, tbe alter ego, was standing there directing tbe work. Tbe work was not so *448obviously dangerous tbat a reasonably prudent man, under similar circumstances, would not do and should refuse to do it. The foreman, Davis, represented the defendant and had the right to give orders to *plaintiff and*direct the work. The issue of assumption of risk was not applicable to the facts in the present case. The court below charged fully and clearly the law applicable to the facts, and perhaps more liberal for defendant than it was entitled to*. Jones v. R. R.,*176 N. C., p. 264-5; *Inge v. R. R., supra*(petition for writ of *certiorari*denied by U. S. Supreme Court, 28 February, 1927); *Robinson v. Ivey,*193 N. C., at p. 812.

The foreman “was a white man and my boss” — the plaintiff was obedient to authority and, under the facts here disclosed, we can find no evidence of assumption of risk.

The assignment of error based on the motions of defendant for judgment as in case of nonsuit at the close of plaintiff’s evidence, and at the close of all the evidence (C. S., 567), cannot be sustained. The assignments of error to the refusal of the court below to submit an issue tendered by defendant as *to*assumption of risk, and failing to charge the jury relative thereto, cannot be sustained. In law we can find

No error.