
    FRANCES W. GRAHAM, Administratrix, v. ATLANTIC COAST LINE RAILROAD COMPANY.
    (Filed 4 June, 1954.)
    1. Master and Servant § 25b—
    Where, in an action lor wrongful death it appears that deceased was an employee of the defendant railroad company and was fatally injured while engaged in the discharge of his duties in interstate commerce, plaintiff’s sole remedy is under the Federal Employers’ Liability Act.
    2. Pleadings § 22b—
    Where the complaint alleges damages for wrongful death but the evidence shows that the deceased was an employee of a railroad company and was fatally injured while engaged in the discharge of his duties in interstate commerce, the court has power to allow plaintiff to amend so as to allege that the parties were engaged in interstate commerce and that plaintiff was the sole dependent of the deceased, so as to bring the action within the Federal Employers’ Liability Act. G.S. 1-163.
    3. Master and Servant § 29—
    Plaintiff alleged a cause of action for wrongful death. The evidence disclosed that plaintiff’s intestate was an employee of a railroad company and was fatally injured in the discharge of his duties in interstate commerce. More than three years after the death, amendment was allowed to bring the cause within the purview of the Federal Employers’ Liability Act. Held: Whether the amendment introduced a new cause of action then barred by the Federal statute must be determined by the Federal law, and under the Federal decisions the facts constituting the asserted negligence being the same, the amendment does not introduce a new cause of action.
    
      4. Mastex> and Servant § 26 — Evidence of defendant’s negligence held sufficient for jury xxnder Federal Employers’ liability Act.
    The evidence tended to show that defendant employer dispatched two employees on a gasoline motorcar to repair a signal, giving the car a one hour clearance on the northbound track, that in less than an hour defendant dispatched an unscheduled freight onto the northbound track without giving those in charge of the freight information in regard to the motorcar, and that the freight struck and killed one of the employees as they were attempting to clear the motorcar from the track. There were also allegations as to the speed of the train, a blind curve in a cut south of the accident, and the failure to ring bell or blow whistle of the engine. Held: Plaintiff’s basic position was that defendant was negligent in turning the freight onto the northbound track under the circumstances, and the evidence was sufficient to take the question to the jury, irrespective of the other allegations of negligence.
    5. Master and Servant § 28—
    The evidence disclosed that the intestate, with another, was dispatched on a motorcar along the northbound track to repair a signal, that the repairmen were given an hour’s clearance on the northbound track, with no information in regard to clearance on the southbound track. The signal was repaired and the repairmen had time to return on the northbound track within the hour’s clearance. Held: The failure of the repairmen to use a nearby railroad telephone for further report as to the clearance on the northbound track before attempting to return on that track, was not contributory negligence as a matter of law, but was properly submitted to the jury upon that issue.
    6. Master and Servant § 28 — Evidence of employee’s contributory negligence held for jury under Federal Employers’ Inability Act.
    The evidence disclosed that defendant dispatched two employees on a motorcar on the northbound track to repair a signal, that the repairmen were given an hour’s clearance on the northbound track, with no information in regard to the clearance on the southbound track, that they repaired the signal and were returning south on the northbound track within the hour when they met an unscheduled freight which had been turned onto the northbound track without warning to the crew that the motorcar was on the northbound track. The freight struck and killed one of the employees as they were attempting to clear the motorcar from the track. The evidence further permitted the inference that the repairmen would have reached the point where they intended to change the motorcar from the northbound to the southbound track, all within the one hour clearance given them. Held: Under the circumstances intestate was not guilty of contributory negligence as a matter of law in returning southward on the northbound track, but the evidence was properly submitted to the jury upon the question.
    7. Same—
    In order to recover under the Federal Employers’ Liability Act, plaintiff must prove that defendant was negligent and that such negligence was the proximate cause, in whole or in part, of intestate’s death.
    
      8. Master and Servant § 28—
    Under tile Federal Employers’ Liability Act, contributory negligence of the fatally injured employee does not bar recovery, but effects a diminution of recovery by tlie proportion of the damages attributable to the employee’s contributory negligence.
    9. Master and Servant § 33—
    The effect of the 1939 amendment to the Federal Employers’ Liability Act (45 U.S.C.A. 54) is to obliterate from the law every vestige of the doctrine of assumption of risk, and decisions prior to the amendment must be considered in relation to the rule as to assumption of risk then embodied in the law.
    10. Master and Servant §§ 26, 28 — Contributory negligence of employee held not to insulate defendant’s negligence as a matter of law.
    The evidence tended to show that two repairmen riding on a railroad motorcar southward on the northbound track, met an unscheduled northbound freight, that they stopped the motorcar and lacked only about 18 inches of clearing the car from the track when the engine struck the motorcar and one of the employees, the other employee having cleared his end of the motorcar from the track. H eld: The acts of the deceased employee in attempting to save his employer’s property and avoid possible injurious consequences to the train crew from a head-on collision with the motorcar, and his failure to have abandoned the motorcar and to have sought his personal safety is not contributory negligence as a matter of law, nor does it constitute a new and independent cause insulating the negligence of defendant in turning the unscheduled freight onto the northbound track without notice to its crew of the presence of the motorcar on the track, but the question was properly submitted to the jury, for it to determine on the basis of the standard of conduct of an ordinarily prudent man under the circumstances, whether intestate was eontributorily negligent, and, if so, whether such contributory negligence was the sole proximate cause of the injury, in which event the negligence of the railroad company would not be a proximate cause.
    11. Negligence § 7—
    Where the negligence of defendant continues up to the moment of injury, it cannot be insulated by the contributory negligence of plaintiff.
    12. Negligence § 10—
    The doctrine of last clear chance, which presupposes both negligence and contributory negligence, relates to a person having charge of an instrumentality who can but fails to bring it under control and so avoid inflicting injury, and in this case the doctrine is inapplicable since the evidence disclosed defendant could not have avoided the injury after discovery of the peril.
    13. Master and Servant § 30a—
    In this action under the Federal Employers’ Liability Act, the failure of the court in several instances to charge that the amount of the recovery should be diminished by the proportion of the damages attributable to the deceased employee’s contributory negligence, is held prejudicial.
    
      14. Appeal and Error § 39f—
    Conflicting instructions upon a material phase of the case must he held for prejudicial error.
    Barnhill, C. J., dissenting in part.
    Winborne, J., concurs in dissent.
    Appeal by defendant from Nimoclts, J., October 1953 Civil Term, of CUMBERLAND.
    Action by administratrix to recover damages for benefit of dependent widow for alleged wrongful death of intestate, tried under provisions of the Federal Employers’ Liability Act, 45 ILS.C.A. secs. 51-60.
    D. B. Graham, the intestate, was the Chief Signal Man, in charge of maintenance of the railroad signal system along the section of defendant’s main line here involved; and J. II. Gibson, witness for plaintiff, was his assistant. They lived at Parkton. About 2 p.m., Saturday, 8 July, 1950, Graham received telephone instructions from defendant’s Train Dispatcher at Rocky Mount to “look after” a red signal on the northbound track of the main line about one mile south of Hope Mills. The Train Dispatcher gave him a “line-up” on this northbound track, advising him that #76, traveling north on the main line, was not due at Parkton until 3 :25 p.m., and that the Bennettsville local (freight) was due to operate that day but had not operated and that he didn’t know when it would. The Bennettsville freight, an unscheduled train, proceeds north from South Carolina stations and comes into the main line at Parkton.
    Graham was in charge of a two-man gasoline motorcar weighing about 450 or 500 pounds which he and Gibson had used for five or six years in their signal maintenance work. Pursuant to the Train Dispatcher’s instruction, they traveled bv this motorcar along defendant’s northbound track and came to the red signal. Realizing that the trouble was in the track between there and the next signal, they proceeded farther along the northbound track and came to the switch leading into the Y. & C. S. Railroad crossroads in or near Hope Mills. There they found a latch hung, which had the circuit cut off and caused the signal behind them to be red. It took them three to five minutes to repair it. They felt sure that this was the cause of the trouble and that the signal behind them had changed from red to green.
    ' After making the necessary repairs, about 2:40 p.m., Graham and Gibson proceeded in reverse, south along the northbound track, with the idea of moving the motorcar from the northbound to the southbound track and of turning it around at a public road crossing some 200-400 yards south of where the repairs were made. Looking south, an embankment where the main line tracks were on a curve obstructed their view of this public road crossing.. They had proceeded about 100 yards from where the repairs bad been made, running about five miles per hour, when Graham exclaimed, “There’s the train,” stopped the motorcar, and pulled out the handle used for lifting the motorcar off the track. Gibson took hold of the south end and succeeded in lifting it off the track. Graham, having hold of the north end, lacked eighteen inches of lifting this part of the motorcar over the east rail. The Bennettsville freight struck the motorcar and Graham, causing immediate death.
    The unscheduled Bennettsville freight arrived in Parkton about 2 :80 p.m. It turned into and proceeded north on the main line after the conductor got orders to do so from the operator at Parkton. He (the operator at Parkton) was called by the Chief Dispatcher at Rocky Mount between 2 p.m. and 3 p.m. and instructed “to turn the Bennettsville train in on the main line.” He had no information that Graham and Gibson had gone north on a motorcar. The Chief Dispatcher did not mention this in his instructions. In accordance with the Chief Dispatcher’s instructions, he gave those in charge of the Bennettsville freight an order showing a clear track all the way to Fayetteville.
    The train consisted of the locomotive and nine ears. The engineer shut the engine off, allowing it to drift downhill as the train approached Rock Fish Creek, south of the public road crossing. He testified that, when in the vicinity of the public road crossing, the fireman, who had better view of the track ahead when rounding a curve to the left, hollered that he saw a motorcar on their track and to put brakes in emergency; that he immediately did so, the engine being then about “right near on” the crossing; and that there was nothing else he could do to make the train stop more quickly. The grade was downhill to the place where the train struck the motorcar.
    The fireman testified that the train had been going fifty miles per hour but was “going approximately 42 miles an hour” in the center of the cut; that the engine went by Graham’s body approximately 1,000 feet; that the crossing was approximately 825 feet south of Graham’s body; and that the train traveled approximately 1,825 feet after the brakes were put into emergency.
    The evidence was conflicting as to whether the bell was rung or the whistle blown as the train approached the scene of collision.
    The jury, under a peremptory instruction, found that Graham, at the time of his death, was engaged in interstate commerce; answered the negligence issue, “Yes”; answered, under a peremptory instruction, the contributory negligence issue “Yes”; and awarded damages in the amount of $36,334.00. Judgment in plaintiff’s favor was entered on the verdict. Defendant appealed, assigning error.
    
      Ciarle & Ciarle and Nance & Barrington for plaintiff, appellee.
    
    
      Shepard & Wood and Rose & Sanford for defendant, appellant.
    
   Bobbitt, J.

Tbe complaint discloses that Grabam was chief maintenance man for a section of defendant’s signal system along its main line; further, that while engaged in the performance of his duty, he was struck and killed on the main line by the train known as the Bennettsville freight. While these hints that Graham and the defendant were engaged in interstate commerce are discoverable, no allegations to this effect are included in the complaint. Nor is there any allegation with reference to the dependents of Graham. In short, the allegations are appropriate as a statement of a cause of action for damages for wrongful death under the North Carolina statutes now codified as G.S. 28-113, 28-114, and G.S. 60-64 et seq.

During the presentation of plaintiff’s testimony it became apparent that both Graham and defendant were engaged in interstate commerce on the occasion of Graham’s death. Hence, the plaintiff’s sole remedy was under the Federal statute. Mondou v. New York, N. H. H. R. Co., 223 U.S. 1, 56 L. Ed. 327, 32 S. Ct. 169, 38 L.R.A. (N.S.) 44; Wilson v. Massagee, 224 N.C. 105, 32 S.E. 2d 335, 156 A.L.R. 922, and cases cited therein.

Defendant thereupon moved to dismiss the action “on the ground that the suit was brought as an intrastate action under the laws of North Carolina, whereas the evidence shows the case arises under the Federal Employers’ Liability Act.” The court overruled defendant’s motion to dismiss and allowed plaintiff to amend her complaint so as to include allegations appropriate to an action under the Federal statute, principally allegations that both employee and employer were engaged in interstate commerce and that plaintiff, widow of Graham, was his sole dependent and as such was the beneficiary of any recovery. Defendant excepted and now urges that a new cause of action was introduced more than three years from the date of Graham’s death and must be dismissed. 45 U.S.O.A. sec. 56.

These facts are noted. Graham’s death occurred 8 July, 1950. The action was commenced 1 July, 1951. The trial was at October Term, 1953. The facts constituting the tort, the basis of defendant’s liability, are alleged in the original complaint. The amendment introduces no new allegations in this field.

Upon the facts alleged, conceding that plaintiff initially was in error in believing that her remedy was under the State statute, can the court permit her, more than three years after Graham’s death, to amend her complaint so as to conform to evidence plainly disclosing that the employee and the employer were engaged in interstate commerce on the occasion of Graham’s death and so as to allege that the widow was the sole dependent of Graham and .the beneficiary of any recovery according to tbe rule of damages prescribed by tbe Federal statute? If so, is tbis a new cause of action as of tbe date of tbe amendment ?

Tbe power of tbe trial court under tbe State statute to allow tbe amendments is plain. Gr.S. 1-163. Whether these amendments introduced a new cause of action, then barred by tbe Federal statute, is governed by tbe Federal law. Seaboard A. L. R. Co. v. Renn, 241 U.S. 290, 293, 36 S. Ct. 567, 60 L. Ed. 1006; New York C. & H. R. R. Co. v. Kinney, 260 U.S. 340, 43 S. Ct. 122, 67 L. Ed. 294; Williams v. Trustees of New York, N. E. & H. R. Co., 90 N.E. 2d 320 (Mass.).

In Missouri, K. & T. R. Co. v. Wulf, 226 U.S. 570, 33 S. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914 B, 334, suit was brought under tbe Kansas statute by tbe mother as sole heir and next of kin to recover on account of her son’s death. After tbe time prescribed for commencement of an action under tbe Federal statute, she was permitted to amend so as to prosecute tbe action in her capacity as administratrix and to allege that her intestate and tbe defendant were engaged in interstate commerce- on tbe occasion of bis death.

In New York G. & H. R. R. Co. v. Kinney, supra, “after several trials and about seven years and a half after tbe suit was begun, tbe plaintiff was allowed to amend bis complaint by alleging that, at tbe time of tbe collision, tbe plaintiff and tbe defendant were engaged in interstate commerce.” Tbe Court, speaking through Mr. Justice Holmes, held that these amendments did not introduce a new cause of action but, quoting from the Renn case, supra, “merely expanded or amplified what was alleged in support of tbe cause of action already asserted . . . and was not affected by tbe intervening lapse of time.” Tbe opinion also quotes from Seaboard A. L. R. Co. v. Koennecke, 239 U.S. 352, 36 S. Ct. 126, 60 L. Ed. 324, tbis trenchant sentence: “Tbe facts constituting tbe tort were tbe same, whichever law gave them that effect.” Tbe great jurist neatly sums up tbe matter in these words: “Of course, an argument can be made on tbe other side, but when a defendant has bad notice from tbe beginning that tbe plaintiff sets up and is trying to enforce' a claim against it because of specified conduct, tbe reasons for tbe Statute of Limitations do not exist, and we are of tbe opinion that a liberal rule should be applied.” (Emphasis added.)

While tbe earlier decisions may have afforded a plausible basis for defendant’s position, tbe later decisions resolve all doubts adversely to defendant; and, upon the authoritative decisions cited, defendant’s motion to dismiss by reason of tbe amendments was properly overruled. New York C. & II. R. R. Co. v. Kinney, supra.

Defendant excepted to tbe court’s action in overruling its motion for judgment of involuntary nonsuit.

Adequate consideration of defendant’s position necessitates an analysis of the pleadings. Plaintiff’s basic position as to negligence is that defendant turned tbe unscbeduled Bennettsville freight onto the northbound track of the main line at Parkton, giving the locomotive engineer an order showing a clear track all the way to Fayetteville, when it knew that Graham and Gibson had left just thirty minutes or so before by motorcar on said track to check a defective signal south of Hope Mills; and that no information to this effect was given to those in charge of the Bennettsville freight. True, there are allegations as to the speed of the train, the blind curve in the cut north of Rock Fish Greek, the failure to ring the bell or blow the whistle, etc. However, these allegations are made in combination with, rather than independent of, plaintiff’s basic position that defendant was negligent under all the circumstances in turning the Ben-nettsville freight onto this section of the northbound track of the main line.

Defendant alleges contributory negligence on the part of Graham in these respects: (1) that, with knowledge that the Bennettsville freight was to run sometime that afternoon, he negligently failed to call the Train Dispatcher from a nearby railroad telephone for a further report as to “line-up” after completing the signal repair job and before returning to Parkton; and (2) that he negligently proceeded south on the northbound track when he could have removed the motorcar to the southbound track with greater safety at the place where the repair work was done and especially at a point some 600 yards to the north at the Hope Mills station. Defendant further alleges that Graham was negligent in that after he saw the approaching train he remained on the track when by the exercise of due care he could have got off and thus escaped injury and death; and that such negligence was the sole proximate cause of his death.

In this connection, it is noted that the Train Dispatcher at Rocky Mount who gave Graham the “line-up” for the “northbound” track about 2 p.m. testified that it was not necessary for Graham to call up again “under an hour” and that “they are safe in the line-up for an hour.” There is also evidence tending to show that the Bennettsville freight left Parkton about 2 :35 p.m. and that the motorcar and Graham were struck shortly after 2 :40 p.m. Thus, there is evidence tending to support the view that Graham and Gibson could and would have got to the road crossing where they were to remove the motorcar from the northbound to the southbound track, some 200-400 yards south off where the repairs were made and several miles north of Parkton, within an hour from the time Graham at Parkton had the telephone instructions from the Train Dispatcher at Rocky Mount. Too, while Graham had the “line-up” on the northbound track, he had no information as to “line-up” on the southbound track.

In order to recover under the Federal Employers’ Liability Act, plaintiff must prove that defendant was negligent and that such negligence was the proximate cause, in whole or in part, of Graham’s death. Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 64 S. Ct. 409, 88 L. Ed. 520. Contributory negligence of Graham would not bar a recovery by plaintiff. The effect would be that his dependent widow could not recover the full amount of damages sustained by her on account of his death but would be barred from recovery of the proportion of such damages attributable to Graham’s contributory negligence. 45 U.S.C.A. sec. 53. And since the 1939 amendment to the Federal Employers’ Liability Act, 45 U.S.C.A. sec. 54, Graham cannot be held to have assumed any risk of his employment when death results in whole or in part from the negligence of any of the agents of the railroad, the effect of the amendment being to obliterate from the law every vestige of the doctrine of assumption of risk. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S. Ct. 444, 87 L. Ed. 610, 143 A.L.R. 967. Decisions prior to the 1939 amendment must be considered in relation to the rule as to assumption of risk then embodied in the law. See Delaware, L. & W. R. Co. v. Koske, 279 U.S. 7, 49 S. Ct. 202, 73 L. Ed. 578; Strunks v. Payne, 184 N.C. 582, 114 S.E. 840. Thus, if the defendant’s oncoming train, rounding the curve, through the cut, was turned onto this track through negligence of the Train Dispatcher, neither Graham’s failure to anticipate its approach nor his inability to remove the motorcar under the circumstances of extraordinary known risk is a defense on the basis of assumption of risk.

Defendant’s position is that its negligence, if any, and the contributory negligence of Graham, had spent themselves; and a new factual situation had arisen. Then, with knowledge of the danger, Graham and Gibson undertook to remove the motorcar when they could have abandoned it and escaped injury; that Gibson got out of the way of the oncoming train; that Graham could have done so; and that Graham’s conduct in failing to abandon the motorcar and get off the track should be held to constitute the sole proximate cause of his death as a matter of law. Thus, defendant contends, its negligence, if any, was “insulated.”

It must be borne in mind that the alleged negligence of defendant upon which plaintiff relies is the fact that the oncoming train had been turned into this section of track without warning to those in charge that Graham and Gibson were there with the motorcar, not the failure of the locomotive engineer to stop the train after he saw or could have seen them. Indeed, so far as the evidence discloses, the train, under the conditions then existing, could not have been stopped within a shorter distance. This alleged negligence, if established, continued to the moment of actual impact and so constituted a proximate cause of Graham’s death. As stated by Seawell, J., in Henderson v. Powell, 221 N.C. 239, 19 S.E. 2d 876: “No negligence is ‘insulated’ so long as it plays a substantial and proximate part in the injury. Restatement of the Law, Torts, sec. 447.”

The defendant’s contention seems to be that since Graham, by abandonment of the motorcar, could have avoided injury and death, he must he held solely responsible therefor notwithstanding defendant’s negligence. The doctrine of last clear chance, which presupposes both negligence and contributory negligence, relates to a person having charge of an instrumentality who can but fails to bring it under control and so avoid inflicting injury. See Wade v. Sausage Co., 239 N.C. 524, 80 S.E. 2d 150, and cases cited therein.

While there is some conflict in the decisions, we are in agreement with the rule supported by the greater weight of authority, namely, that it is for the jury to say whether, under the circumstances then existing, Graham failed to exercise due care for his own safety, under the rule of the ordinarily prudent man, in undertaking to remove the motorcar from the track and in failing to get out of the way of the approaching train, and, if so, whether such negligence was a contributing proximate cause or the sole proximate cause of his death. Joice v. Missouri-Kansas-Texas R. Co., 354 Mo. 439, 189 S.W. 2d 568, 161 A.L.R. 383; Moran v. Atchison, T. & S. F. Ry. Co., 48 S.W. 2d 881 (Mo.); Newman v. Southern Ry. Co., 194 S.E. 237 (Ga.); Owen v. Kurn, 148 S.W. 2d 519 (Mo.); Texas Cent. R. Co. v. Bender, 75 S.W. 561 (Texas); International & G. N. R. Co. v. McVey, 81 S.W. 991 (Texas); Dailey v. Burlington & M. R. R. Co., 78 N.W. 722 (Neb.); Winczewski v. Winona & W. Ry. Co., 83 N.W. 159 (Minn.); Mitchum v. Chicago., R. I. & G. Ry. Co., 173 S.W. 878 (Texas); St. Louis, I. M. & S. Ry. Co. v. Morgan, 171 S.W. 1187 (Ark.); Illinois Cent. R. Co. v. Evans, 186 S.W. 173 (Ky.).

Three cases, Deere v. Southern Pac. Co. (C.C.A. 9th), 123 F. 2d 438, and Foreman v. Texas & New Orleans R. Co. (C.C.A. 5th), 205 F. 2d 79, cited by defendant, and Mathis v. Kansas City Southern Ry. Co., 74 So. 172 (La.), lend support to defendant’s position. While each of these cases is distinguishable factually, principally on the ground of the failure to show negligence on the part of the railroad company, statements in the opinions are in accord with defendant’s contentions here. But, after careful consideration, we adopt the majority view as stated above.

The case before us is distinguishable from those where an employee, in a position of safety, consciously exposes himself to imminent peril outside the line of his duty and injury or death results. Johnson v. Terminal R. Asso., 8 S.W. 2d 891, 61 A.L.R. 572, Annotation, 61 A.L.R. 579 (Mo.). Compare, Bobango v. Erie R. Co. (C.C.A. 6th), 57 F. 2d 667.

Temple v. Hawkins, 220 N.C. 26, 16 S.E. 2d 400, cited by defendant, is not in point. The plaintiff there, whose truck stalled on the crossing, could have but failed to get out and avoid injury. Under tbe State law bis right to recover was barred by bis contributory negligence.

We omit reference to decisions where tbe train ran down a motorcar or velocipede proceeding in tbe same direction for there tbe element of lack of knowledge of tbe train's approach until the time of impact is ordinarily tbe factor of greatest importance.

It appears now that if Graham bad abandoned tbe motorcar when be saw tbe approaching train be would in all probability have escaped from bis dilemma without injury. But be was and bad been in charge of this particular motorcar. It was bis employer’s property, entrusted to him for use in tbe course of bis employment. He owed a duty to bis employer to exercise due care under all tbe circumstances to save it from damage or destruction by removing it from tbe path of tbe oncoming train. At tbe same time, be was under tbe duty to exercise due care for bis own safety. While tbe company rules, offered by defendant, enjoined its employees to act always on tbe principle of safety first, Rule 3 specifically provides that “employees to whom motorcars are assigned are responsible for their use and condition”; and Rule 14 provides that “any violation of tbe foregoing rules will be regarded as cause for dismissal.” Moreover, tbe probable consequences to tbe oncoming train and its crew, as well as to tbe motorcar and to him and Gibson, in tbe event of a bead-on crash, were to be considered.

Nor can it be said as a matter of law that Graham did not have reasonable ground to believe that be and Gibson could complete tbe removal of tbe motorcar before tbe train got to it. Tbe Moran case, supra, while referring to Moran’s conduct in terms of the now obliterated doctrine of assumption of risk, contains this statement, apposite here: “There was evidence that Moran lacked only eight inches of being in tbe clear when tbe engine struck him. Evidence that be came so near getting in tbe clear tends to show that be bad reasonable grounds for believing that be would have time to remove tbe motorcar from tbe track, and that be did not appreciate tbe near and dangerous approach of tbe train. . . . Under tbe circumstances shown we cannot judicially say that Moran did not act as an ordinarily prudent person would have acted under tbe same circumstances, and therefore decline to bold, as a matter of law, that be assumed tbe risk.” And in tbe Bender case, supra, in relation to facts more favorable to defendant’s position than tbe facts here, tbe Court said: “Nor did appellee forfeit bis right to recover by trying to remove tbe handcar from tbe track. It is by no means clear from tbe evidence that a prudent man in bis situation would have pursued a different course.”

Whether, in attempting to save bis employer’s motorcar and to avoid tbe consequences of a bead-on collision, Graham’s actions were those of an ordinarily prudent person so situated, or were those of a foolhardy and •reckless person, indifferent to bis own safety, could not be answered as a matter of law. It was for determination by tbe jury.

Tbe conclusion we reach is that tbe issues of negligence and of contributory negligence were for the jury. If tbe jury bad found that Graham’s death was caused solely by bis own negligence, this would have required a negative answer to tbe first issue, embracing as it does both negligence and proximate cause. Tbe motion for judgment of involuntary nonsuit was properly overruled.

Even so, conflicting instructions to tbe jury on tbe issue of damages necessitate a new trial. It is noted that defendant’s position as to matters set out below are duly presented by proper exceptive assignments of error.

Tbe original complaint alleged that Graham’s estate bad been damaged by bis wrongful death in tbe amount of $40,000.00. When tbe amendments were allowed, tbe complaint as amended alleged that Graham’s widow as sole dependent and beneficiary bad been damaged by bis wrongful death in tbe amount of $40,000.00.

Upon reaching tbe issue as to damages, the court gave tbe jury full and correct general instructions on the subject of comparative negligence in relation to damages, to be applicable in tbe event tbe jury answered both tbe negligence and tbe contributory negligence issues in tbe affirmative, i.e., that tbe plaintiff was entitled to recover for tbe benefit of tbe widow only such portion of her total damages resulting from Graham’s death as was attributable to defendant’s negligence and was not entitled to recover such portion as was attributable to Graham’s negligence.

After these instructions tbe court reviewed at some length tbe plaintiff’s evidence and her contentions thereon to the effect that she bad been damaged by reason of Graham’s wrongful death in tbe amount of $40,-000.00. Tbe court then says, by way of reviewing defendant’s contentions : “Tbe defendant further contends that tbe sum of $40,000.00 is an exorbitant price and, even should you come to consider tbe third issue, that you should not award damages in any large amount like that or any other substantial amount, but tbe defendant contends it only should be in some amount, if any at all, much less than tbe amount contended for and demanded by tbe plaintiff in the action.”

In tbe review of contentions, nothing is said with reference to contentions as to diminution of total damages on account of Graham’s contributory negligence, if any, by tbe proportion of total damages attributable to Graham’s negligence. Tbe failure to include tbe respective contentions of tbe parties on this subject, after having reviewed fully tbe plaintiff’s evidence and contentions as to tbe damages tbe widow has suffered on account of tbe wrongful death of Graham, must be considered in tbe light of tbe court’s final word and summary instruction to the jury, to wit:

“So, gentlemen, if you come to consider that third issue as to damages, and if you award plaintiff damages in the case, the Court instructs you that the damages recoverable, if any, is limited to the present cash value or present worth of such loss as results to the beneficiary occasioned by her, that is by the plaintiff, Mrs. Graham, being deprived of the reasonable expectancy of pecuniary benefit because of the alleged wrongful death of her deceased husband and the amount to be allowed is limited strictly to the financial loss thus sustained.”

In the instruction, quoted above, the court, by inadvertence, instructed the jury that the plaintiff was to be awarded damages to compensate for the widow’s loss “by being deprived of the reasonable expectancy of pecuniary benefit because of the alleged wrongful death of her deceased husband.” (Emphasis added.) This final, positive and clear instruction obviously ignores the rule that, if Graham were guilty of contributory negligence (and a peremptory instruction on the contributory negligence issue had been given), the damages recoverable would be limited to the proportion of the total damages attributable to defendant’s negligence. We are constrained to hold that this final, explicit instruction to the jury, which relates plaintiff’s recoverable damages to the death of Graham rather than to the negligence of defendant, may have had a pervading influence on the minds of the jury and may well be reflected in their answer of the issue, “$36,334.00.”

As stated by Barnhill, J. (now C. J.), in S. v. Overcash, 226 N.C. 632, 39 S.E. 2d 810 : “When there are conflicting instructions to the jury upon a material point, the one correct and the other incorrect, a new trial must be granted. We may not assume that the jurors possessed such discriminating knowledge of the law as would enable them to disregard the erroneous and to accept the correct statement of the law as their guide. We must assume instead that the jury in coming to a verdict, was influenced by that part of the charge that was incorrect.” See cases cited in S. v. Overcash, supra; Dixon v. Brockwell, 221 N.C. 567, 42 S.E. 2d 680; Green v. Bowers, 230 N.C. 651, 55 S.E. 2d 192; In re Will of Kemp, 234 N.C. 495, 67 S.E. 2d 672; S. v. Howell, 239 N.C. 78, 79 S.E. 2d 235.

A new trial is ordered. This renders unnecessary the consideration of other exceptive assignments of error brought forward by defendant. None of them may be pertinent upon the retrial of the cause.

New trial.

BaRNIiill, O. J.,

dissenting in part: The majority, after analyzing the complaint, state that “the alleged negligence of defendant upon which plaintiff relies is the fact that the oncoming train had been turned onto this section of track (between Parkton and the signal tower to the north) without warning to those in charge (of the train) that Graham and Gibson were there with the motorcar, not the failure of the locomotive engineer to stop the train after he saw or could have seen them.” It is stated in effect that the allegations of speed, blind curve in the cut north of Rock Fish Creek, and the failure to ring the bell or blow the whistle constitute window dressing which alone would not support a recovery. I accept that interpretation of the complaint.

The testimony offered in support of this single alleged act of negligence presents these questions for decision: (1) Did the defendant, through its dispatcher, commit an act of negligence when it turned the unscheduled Bennettsville freight onto the northbound track within thirty minutes after having given Graham one-hour clearance for said track without giving any notice to those in charge of said freight that Graham and his companion had gone to repair the signal, and if so, (2) was. such negligence one of the proximate causes of the death of plaintiff’s intestate?

In the first place I cannot perceive that defendant breached any duty it owed the deceased when it let the freight proceed northward on the northbound track. The deceased needed clearance on the northbound track to make the trip to the signal tower. This he received. He had reached his destination when the freight entered upon the track. The dispatcher knew that the deceased had had ample time within which to reach his destination, and that it was the duty of deceased to make his return trip on the southbound track. There was no cause for the dispatcher to anticipate or foresee that the use of the northbound track by the freight would in any wise endanger either Graham or Gibson. He had reason instead to believe that they would return to Parkton on the southbound track.

If such conduct must be considered an act of negligence, it in no wise contributed to the death of plaintiff’s intestate. It ceased to play “a substantial and proximate part” in the collision and resulting death so soon as the deceased discovered the approach of the train in ample time to stop the motorcar, leave the track, and reach a zone of safety. That he had ample time so to do is conceded. From that time on until the final crash, his life or death depended entirely upon what he should decide to do. Therefore, I am unable to perceive how it may be said that the action of the dispatcher in turning the train onto the northbound track without warning the train crew that the deceased and his companion were somewhere to the north was a proximate cause of the death of plaintiff’s intestate.

But the majority hold that the deceased may be excused for his conduct on the ground that he owed his employer the duty to protect the property entrusted to his care against damage or destruction. To say that this duty was so impelling that he must perforce risk his life in its performance would seem to me to carry it to the extreme. Self-preservation is said to be the first law of nature. To say that the rules of the company overrode this law and bound the deceased to risk his own life to protect the motorcar from damage or destruction or suffer the penalty of a discharge and excuses his failure to seek a place of safety in time to avoid injury or death is but to attribute to his employer — and the law itself — a stone-heartedness beyond my comprehension.

The law as I understand it required him, when in the presence of a known danger, to use diligence to avoid the threatened injury or death. All other considerations faded into insignificance.

The deceased was negligent in two material respects, and in my opinion such negligence on his part constitutes the sole proximate cause of his injury and death.

When he began his return trip, it was his duty to use the southbound track. A telephone was available so that he could get clearance on that track. He elected to proceed southward on the northbound track when he knew, or should have known, that the engineer of a train proceeding northward would have no cause to anticipate that he would meet another train or motorcar going in the opposite direction on the same track. Then he proceeded to narrow the gap between his motorcar and the approaching train to the point a collision between the two became inevitable.

The deceased discovered the presence of the approaching train in ample time to stop his motorcar, leave the track, and reach a zone of safety. The peril was apparent for sometime before the collision. The way of escape was open. The duty to get off the track, out of the way of the oncoming train, was impelling. Yet he elected to remain on the track until the very moment of the collision, and he did so knowing the engineer could not stop his train within the available distance so as to avoid striking him. It is not a case of last clear chance or hidden peril. Whatever his motives — and no doubt they were good — they did not, in my opinion, excuse his conduct or shift the blame to the defendant. If he first thought he had time to remove the motorcar, it soon became apparent he could not do so. Certainly this is so if the train was traveling as plaintiff’s evidence tends to show.

The record, in my opinion, discloses that the conduct of the deceased evidenced a reckless indifference to his own safety, which conduct on his part was the sole proximate cause of his injury and death. I, therefore, vote to sitstain the motion for judgment of involuntary nonsuit.

Passing the question of nonsuit, I agree that (1) the original complaint constitutes a defective statement of a good cause of action, and that the order allowing amendment thereof rested within the sound discretion of the presiding judge, and (2) the conflict in the charge on the question of damages requires a new trial.

WiNBORNE, J., concurs in dissent.  