
    LEONORA MUMPOWER v. BLACK MOUNTAIN RAILWAY COMPANY.
    (Filed 12 December, 1917.)
    1. Railroads — Negligence—Evidence—Questions for Jury — Trials.
    Where there is evidence tending to show that the plaintiff’s intestate, an engineer on defendant’s locomotive, was killed by a runaway car from defendant’s siding, on a steep mountain grade, coming into collision with his train on the main line; that the car got away from a shipper, on the siding when moving it according to an established custom; that the brake-shoes on this car were insufficient, and the defendant had provided a defective derailer, which failed to work, and that the intestate’s train was running backward for the failure of defendant to provide a “wye” or turntable, and without proper lookout to warn him of the danger, which he could probably have averted by jumping, had the train been properly run with the locomotive ahead, or upon warning given: Held, sufficient, upon the issue of defendant’s actionable negligence.
    2. Railroads — Negligence—Collisions—Presumptions—Burden of Proof.
    The death of plaintiff’s intestate, an engineer on defendant’s locomotive, caused by a collision with another car running wild into his train from a siding, raises a presumption of defendant’s negligence, with the burden on defendant to disprove it, and carries the case to the jury.
    3. Negligence — Concurring Causes — Damages.
    Where a negligent act, committed by a shipper within a custom permitted by the railroad company, together with the negligent acts of the railroad, concurrently and proximately cause an injury to the latter’s employee, engaged at the time within the scope of his employment, an action may be maintained against the railroad for the entire damage suffered.
    Appeal by defendant from Lane, Jat March Term, 1917, of YaNCey.
    The plaintiff’s intestate was a fireman upon defendant’s railroad. At Summit Cut, near Burnsville, the defendant had built a side-track about 300 yards long, on a very steep grade. If a car upon said side-track got loose it would run down said side-track and onto the main line for more than a mile. The railroad runs from Kona, in Mitchell County, to Escota, in Yancey, about 22 miles. The roadbed is very steep and crooked. The defendant failed to put in a turn-table or “Y,” by reason of which at that time the engine had to be run backward, with the tender in front, from Escota to Kona.
    The side-track at Summit Cut was much used by English, a lumber dealer, as a loading and shipping point. He had built a dock along this side-track to store lumber on. The custom had prevailed, ever, since this road was built, for shippers to move cars on the side-tracks, which were numerous on this road, for storing and shipping lumber.
    The defendant had a defective derailer on the side-track at Summit Cut, and about a week before the death of plaintiff’s intestate a car in bad order and with defective brakes had been placed on this side-track. Tbe defendant, in repairing tbis car, left it with seven brake-sboes instead of eight.
    On tbe day tbe plaintiff’s intestate was killed, tbe engine was being operated backward up tbe bill, towards tbe side-track. English attempted to move a car that was on bis side-track, but, owing to its defective brakes, be was unable to control it, and, tbe derailer also being defective, tbe car ran out on tbe main line and down it, at an ungovernable speed. Tbe engine being operated backwards, the engineer, who was on tbe other side, could not see tbe car coming. If bis engine bad been at tbe bead of tbe train be could have seen tbe wild car coming, and could have jumped. Tbe defendant bad no lookout on tbe engine, nor on tbe leading car, as tbe train was backing up tbe bill. Tbe runaway car collided with tbe train, killed tbe plaintiff’s intestate and seriously injured tbe engineer.
    Yerdict and judgment for tbe plaintiff. Defendant appealed.
    
      Merrimon, Adams & J ohnston and Charles Hutchins for plaintiff.
    
    
      H. Q. Morrison, J. J. McLauchlin, J. Bis. Bay, and Pless & Winborne for defendant.
    
   Clark, C. J.

There was evidence of negligence, in that tbe defendant bad no lookout on tbe rear end of tbe train, which was moving backward. Lloyd v. R. R., 118 N. C., 1010; Purnell v. R. R., 122 N. C., 845, and numerous cases cited to these cases in tbe Anno. Ed. In any view of tbe case, there was not a sufficient lookout, as required by Arrowood v. R. R., 126 N. C., 630.

The evidence of the defective derailer was also evidence of negligence sufficient to go to the jury. Evidence was competent as to the custom prevailing on the railroad for shippers, like Mack English, to shift the cars on the side-track, both before and after they were loaded, to meet their convenience, and to show that this was done with the implied knowledge and consent of the company. Bradley v. R. R., 126 N. C., 735; Kesterson v. R. R., 146 N. C., 276; Whitehurst v. R. R., 160 N. C., 1; Greer v. Lumber Co., 161 N. C., 144, and many others.

Tbe death of plaintiff’s intestate was caused by a collision, and this raised the presumption of negligence on the part of the carrier, and the burden was on the defendant to rebut this presumption, which carried the case to the jury. Stewart v. R. R., 137 N. C., 687; Wright v. R. R., 127 N. C., 225.

Though tbe track was very steep and crooked, tbe defendant bad failed to build any turntable or “Y,” by which tbe engine would have been turned around and operated head first. There was evidence that if tbe engine bad been operated bead first, tbe engineer could have seen tbe wild car in time to have avoided injury, or at least to jump and save himself. There was also evidence that the derailer, which should have thrown a runaway car off the track, was visibly defective, and that the loose car did not even hesitate as it went over it.

If there was negligence of English in shifting the cars on the track, it was in accordance, according to the evidence, with the custom of this defendant at the side-tracks, and therefore his shifting it was with the knowledge and consent of the company. If the negligence of English started the runaway car, it concurred with and contributed to the negligence of the company, which permitted him to do this, and which, by reason of running the train backward without a lookout at that end, and without a sufficient derailer, which should have thrown the car before it reached the main line, caused the death of plaintiff’s intestate, as the jury found.

In Ridge v. R. R., 167 N. C., 525, Walker, J., said: “Where there are two causes cooperating to produce an injury, one of which is attributable to the defendant’s negligence, the latter becomes liable, if together they are the proximate cause of the injury, or if defendant’s negligence is such proximate cause. Wliere the master’s negligence contributes to the result, although there may be a cooperating cause not due to the servant’s act, the law will not undertake' to apportion the liability, but will hold him responsible to the servant in the same degree and with the same consequences as if his negligence had been the sole cause of the injury.”

After English had released the car, the injury to the plaintiff would not have occurred except for the negligence of the defendant in the several particulars above stated. The case is very much like Bloxam v. Timber Co., 172 N. C., 46, where Walker, J., said: “The shifting of the winds is not the proximate cause of the injury. Although the act of God, for which they are not responsible, as contended by the defendants, is considered to be the remote cause, if, after the winds changed in direction and the tree started in its course toward the car, the engineer had a fair opportunity to stop the engine after becoming aware of the danger, if these are the facts, the injury to the plaintiff was not the result of an accident,'but of direct causation.”

In Hudson v. R. R., 142 N. C., 204, it is said: “In order, however, that a party may be liable for negligence, it is not necessary that he should have contemplated or even been able to anticipate the particular consequences which ensued or the precise injuries sustained by the plaintiff. It is sufficient if by the exercise of reasonable care the defendant might have foreseen that some injury would result from his act of omission, or that consequences of a generally injurious nature might have been expected.”

The defendant, for divers reasons, should have anticipated that some injury would occur from its custom in permitting shippers to move cars on side-tracks, because of tbe fact that it had left this car on a steep sidetrack, in a defective condition, with only seven brake-shoes instead of eight, and it knew that if the car broke loose, the derailer, which, if in good condition, would have thrown the runaway car from the track before it reached the main line, was in a defective condition, so that it did not operate. As to exception 28, while the could did not use the exact words as to the burden of proof, as requested, he did charge as follows: “Was the plaintiff’s intestate injured and killed by the negligence of the defendant, as alleged ? The burden of this issue is upon the plaintiff to satisfy you, by the greater weight or the preponderance of the evidence, that the plaintiff’s intestate was killed by the negligence of the de--fendant.”

The refusal of the court of an amendment-to plead the Federal Employer’s Liability Act was a matter within its discretion. Revisal, 507; Johnson v. Telephone Co., 171 N. C., 130. Besides, as assumption of risk is not shown or pleaded, we cannot see that it would have had any bearing. The plaintiff had alleged, and the answer had admitted, that it was an intrastate railway. Flemming v. R. R., 160 N. C., 196. The defendant, moreover, had repeatedly announced its readiness for trial upon the pleadings, which admitted that it was engaged in intrastate business. R. R. v. Mimms, 242 U. S., 532.

The defendant claims that its railroad was built principally as a logging road. It is alleged in the pleading, and admitted, that it is a common carrier; and the fact, if such, that it is a logging railroad, built through a rough country, will not avoid its liability for negligence as shown in this case. Even if a logging road, it is liable to its employees in the same standard of duty as any railroad system. Buchanan v. Lumber Co., 168 N. C., 40; Hemphill v. Lumber Co., 141 N. C., 487; Simpson v. Lumber Co., 130 N. C., 96; Craft v. Timber Co., 132 N. C., 156.

After carefully considering the whole case, and each exception in detail, we find

No error.  