
    IDA MAY SOUTHWELL, Administratrix of H. J. SOUTHWELL, v. ATLANTIC COAST LINE RAILROAD COMPANY.
    (Filed 8 April, 1925.)
    1. Evidence — Nonsuit.
    Tile evidence, upon defendant’s motion to nonsuit thereon, will be considered in the light most favorable to the plaintiff, and the motion will be denied if thus considered it is legally sufficient to support a verdict in plaintiff’s favor.
    2. Carriers — Employer and Employee — Master and Servant — Railroads— Wrongful Death — Homicide—Vice-Principal—Evidence—Nonsuit.
    A railroad company is held liable for the homicide of its employee on its railroad yard by another employee, when its vice-principal thereon was or should have been aware beforehand of the intended killing, and should with the exercise of proper care have prevented it, and where the evidence is conflicting as to whether the killing could have been thus prevented by the defendant’s vice-principal acting for the defendant at the time, the question should be submitted to the jury, whether the deceased was engaged in interstate commerce at the time of his death, or in intrastate commerce.
    3. Employer and Employee — Master and Servant — Vice-Principal—Torts.
    As a general rule, a principal who intrusts an employee with authority to control other employees, is held responsible for the manner in which this authority is exercised.
    Yakseb, J., not sitting.
    Appeal by plaintiff from a judgment of nonsuit rendered by Grady, J., at October Term, 1924, of New HaNovee.
    On IS” July, 1922, plaintiff’s intestate, a locomotive engineer employed by the defendant, at the end of his run from Fayetteville to Wilmington, carried his engine to the roundhouse and after attending to duties incident to the day’s work started home. While yet on defendant’s premises and going along the usual exit, about 7 p. m., he was shot with a pistol and killed by H. E. Dallas, who was assistant yardmaster and special policeman during a strike. At the conclusion of plaintiff’s evidence the defendant’s motion to dismiss the action as in case of nonsuit was allowed, and the plaintiff excepted and appealed. The-material facts are stated in the opinion.
    
      Qlayton Grant, Weeks & Gox and Dye & Clark for plaintiff.
    
    
      Rountree & Carr, Thos. W. Davis and V. E. Phelps for defendant.
    
   Adams, J.

In the complaint neither the Federal Employers’ Liability Act nor the State statute (C. S., 3466) is specifically pleaded, but in the answer it is alleged that at the time of the intestate’s injury and death the defendant was engaged and the intestate was employed in interstate commerce. The only testimony on the question was that of E. L. Fonvielle, a witness for the plaintiff. He said that the deceased was the engineer on train No. 322, hauling freight from Fayetteville to Wilmington, and that in the train were cars which were to be carried from places within to places without the State. The carriage of these cars, the defendant argues, constituted commerce among the states. Pennsylvania Co. v. Donat, 239 U. S., 49, 60 Law Ed., 139; Pennsylvania Co. v. Sonman Co., 242 U. S., 120, 61 Law Ed., 188; York Mfg. Co. v. Colley, 247 U. S., 21, 62 Law Ed., 963; R. R. v. Zachary, 232 U. S., 248, 58 Law Ed., 591. It is also contended that the deceased was employed in interstate commerce at the time he was shot by Dallas, though he was then leaving the defendant’s yards after his day’s work. Erie Railroad v. Winfield, 244 U. S., 170, 61 Law Ed., 1057; So. Ry. Co. v. Puckett, ibid., 571, 61 Law Ed., 1321; R. R. v. Zachary, supra; Hinson v. R. R., 172 N. C., 646; Davis v. R. R., 158 N. W. (Minn.), 911; Easter v. R. R., 86 S. E. (W. Va.), 37; R. R. v. Walker’s Admr., 172 S. W. (Ky.), 517. See, also, Annotation, 10 A. L. R., 1184.

Upon these propositions the defendant rests its contention that it was engaged in interstate commerce and that the intestate was employed in such commerce at the time of his injury, and that the controversy must therefore be determined in accordance with the Federal law. It is further insisted that under the Federal act the right of recovery is always predicated only upon proof of injury or death proximately resulting from the defendant’s negligence, and never upon proof of wilful homicide committed by the defendant’s officer, agent, >or other employee. R. R. v. Winfield, 244 U. S., 147, 61 Law Ed., 1045; Davis v. Green, 260 U. S., 349, 67 Law Ed., 299; Roebuck v. R. R., 162 Pac., 1153; Roberts v. R. R., 143 N. C., 176; Belch v. R. R., 176 N. C., 22; Capps v. R. R., 178 N. C., 558; U. S. Compiled Sts. sec. 8657 et seq.

If we resolve these questions in .favor of the defendant we are yet to determine whether there is any evidence of its actionable negligence, for it is settled law that a motion to dismiss an action as in case of nonsuit will be denied if there is evidence which, most favorably considered, will support a verdict for the plaintiff. C. S., 567 and citations. A deliberate review of the record has convinced us that there is evidence of the defendant’s negligence which should have been submitted to the jury. A master owes his servant the same duty to respect his person that he owes third persons and is required to exercise due care for his safety. laggard on Torts, 280 (92), 992. Cooley states the principle in these words: “The rule that a master is responsible to persons who are injured by the negligence of those in his service, is subject to the general exception: that he is not responsible to one person in his employ for an injury occasioned, by tbe negligence of another in tbe same service, unless generally or in respect of tbe particular duty tben resting upon tbe negligent employee, tbe latter so far occupied tbe position of bis principal as to render tbe principal chargeable for bis negligence as for personal fault. Torts, 3 ed., 1173.

It is obvious, tben, that tbe question of tbe defendant’s liability, in part at least, involves tbe relation existing between tbe defendant and Eonvielle and between Eonvielle and Dallas at tbe time tbe shot was fired. There is evidence tending to show that at this time Southwell, Dallas and Eonvielle were still on duty.

True, some of tbe witnesses testified that Dallas was not in tbe discharge of bis duties after four o’clock; but others said that be went to tbe office and used tbe telephone in an effort to find a trainman just a few minutes before tbe homicide, and that calling tbe crew was one of tbe duties assigned him. Lewis was yardmaster; Dallas was bis assistant; and Eonvielle was general yardmaster, in authority superior to Dallas. In fact, Eonvielle testified that bis subordinates who were on tbe defendant’s premises were subject to bis orders as to any work to be done for tbe company, and that all employees were subject to orders while on duty. There is evidence that be and Dallas were together several minutes immediately preceding tbe shooting and that be knew of “unpleasant remarks and threats that bad occurred several days prior thereto between Dallas and Southwell.” As be and Dallas walked from tbe butting block to tbe gate in front of tbe superintendent’s office be bad bis arm around Dallas, knew Dallas was armed with a pistol, and asked him to go to tbe office. Dallas bad told him be wanted to talk to Southwell “and ask him to lay off me and let me alone.” Eonvielle saw Dallas and Southwell approaching each other and feared an altercation. He said be wanted to be close to them if anything unpleasant should occur, but after passing through tbe gate instead .of going towards them be turned away and walked in tbe direction of tbe station master’s office.

As a dying declaration (C. S., 160) Southwell made this statement: “I was coming from my engine and as I approached tbe truck Mr. Dallas and Mr. Eonvielle stepped from behind tbe truck and Mr. Dallas raised a gun and Mr. Eonvielle walked in tbe opposite direction from Dallas.”

These and other circumstances favorable to tbe plaintiff should have been submitted to tbe jury on tbe questions whether Dallas and tbe others were on duty, whether Eonvielle occupied as to tbe defendant tbe relation of vice-principal, whether at tbe time Dallas was subject to Eonvielle’s orders, and whether upon tbe entire evidence tbe defendant failed in tbe performance of a legal duty to protect Southwell from a sudden assault which the defendant through its vice-principal should have foreseen and prevented. “The courts, as a whole, require the master to answer for the negligence of a vice-principal whenever the default complained of consists in the omission to take such precautions as a prudent man would, under the circumstances, have taken for the purpose of protecting the injured subordinate against some peril of the transitory class, against which he had no adequate means of guarding himself.” 4 Labott, Master & Servant, 4308, sec. 1471. The general rule that a principal who intrusts an employee with authority to control other employees is held responsible for the manner in which it is exercised and for the omission properly to exercise it is sustained in numerous decisions. Tanner v. Lumber Co., 140 N. C., 475; Shaw v. Mfg. Co., 146 N. C., 235; Holton v. Lumber Co., 152 N. C., 68; Walters v. Lumber Co., 165 N. C., 388; Hollifield v. Tel. Co., 172 N. C., 714.

We think the judgment of nonsuit should be set aside and a new trial awarded, and for this reason we refrain from a discussion of the other alleged grounds of liability.

Error.

Yakseb, J., not sitting.  