#### KATE RITCHIE, Administrator of Efird T. Ritchie, v. HIGH POINT, THOMASVILLE and DENTON RAILROAD CO.

(Filed 8 December, 1926.)

1. Negligence — Railroads—Master and Servant — Employer and Employee —Evidence—Nonsuit—Rule of Prudent Man — Questions for Jury.

Evidence tbat tbe flagman on defendant railroad company’s train saw tbe deceased at wort in tbe course of bis employment under a disconnected box-car on tbe defendant’s track, and about fifteen minutes thereafter signalled tbe engineer on the train to couple it therewith wbicb resulted in death, is sufficient to take the case to tbe jury under the rule of tbe prudent man.

*6672. Same — Contributory NegUgence — Damages—Statutes.

Where there is evidence that the defendant railroad company negligently coupled a box car under which the deceased was at work to its train, causing his death, the fact that the deceased was guilty of contributory negligence in failing to place the customary signals where he was at work, does not entitle the defendant to a judgment as of nonsuit, and the amount of the verdict will be reduced under the doctrine of comparative negligence. C. S., 567.

Appeal by defendant from *Shaw, J.,*at April Term, 1926, of Guil-ford. No error.

Action to recover damages for wrongful death. Deceased was an employee of defendant, a common carrier, by railroad. Tbe issues answered by tbe jury were as follows:

1. Was tbe plaintiff’s intestate killed by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: Yes.

2. Did tbe plaintiff’s intestate by bis own negligence contribute to bis death, as alleged in tbe answer? Answer: Yes.

3. What damages, if any, is tbe plaintiff entitled to recover of tbe defendant? Answer: $8,275.00.

From judgment upon tbe verdict, defendant appealed to tbe Supreme Court.

*J. A. Barringer and R. G. Strudwick for plaintiff.*

*Robeson & Haiuorth, and Peacock, Dalton & Lyon for defendant.*

OoNNOR, J.

Defendant, upon its appeal to this Court, relies solely upon its assignment of error based upon its exception to tbe refusal of its motion for judgment as of nonsuit, made at tbe close of all tbe evidence. C. S., 567.

Contributory negligence of tbe deceased, as found by tbe jury in its answer to tbe second issue, in failing to place flags or other signals on or beside tbe track, on which tbe car under which be was at work was standing, as notice of bis presence under tbe car, to tbe conductor or engineer on defendant’s train, which struck tbe car, and thereby caused tbe injuries, does not bar a recovery in this action, if tbe death of deceased resulted, in whole or in part, from tbe negligence of an employee of defendant. Deceased at tbe time be was fatally injured was an employee of defendant, and engaged in tbe performance of bis duties; defendant is a common carrier by railroad. Tbe effect of tbe answer to tbe second issue, as tbe court correctly instructed tbe jury, was to diminish tbe damages sustained by plaintiff in proportion to tbe amount of negligence attributable to deceased; only tbe damages, thus diminished, were recoverable by plaintiff, upon tbe affirmative answer to tbe first issue. C. S., 3466; C. S., 3467.

*668Plaintiff was injured on 28 October, 1925; be was at tbe time at work under a car, standing on .defendant’s track at Higb Point; tbe car was struck by an engine wbicb entered upon tbe track, for tbe purpose of “coupling up” tbe car, after tbe switch bad been thrown by tbe flagman. Neither tbe conductor nor tbe engineer on tbe moving train knew that deceased was, under tbe car standing on tbe track.

Tbe flagman testified that be bad seen deceased at work under tbe car ten or fifteen minutes before be threw tbe switch as directed by tbe conductor; be gave tbe signal to tbe engineer to enter upon tbe track on which tbe car under wbicb deceased was at work was standing; be did not know that deceased was then under tbe car; tbe engine entered upon tbe track, struck tbe car and thus caused tbe fatal injuries to deceased.

This evidence was properly submitted to tbe jury upon plaintiff’s contention that it was negligence for tbe flagman, an employee of defendant, who bad within ten or fifteen minutes seen deceased at work under tbe car, to signal tbe engineer to pass over tbe switch and enter upon tbe track for tbe purpose of coupling up tbe car, without ascertaining whether or not deceased bad left a place of such grave danger; and upon her further contention that such negligence was tbe proximate cause of tbe death of plaintiff’s intestate. Tbe question as to whether or not, under all tbe circumstances as tbe jury might find them to be, from tbe evidence, tbe conduct of tbe flagman was that of an ordinarily prudent man, was for tbe jury to determine, under tbe instructions of tbe court. There are no exceptions to tbe charge of tbe court, either as to negligence or as to proximate cause; tbe charge, in full, is set out in tbe transcript to this Court, and is free from error.

There was no error in refusing tbe motion for judgment as for non-suit. Tbe judgment is affirmed.

No error.