This case was before the Court on a former appeal, and will be found reported in 139 N. 0., 528.
The facts supporting the claim of plaintiff are substantially similar to those disclosed in the former appeal.
There was much testimony on the part of defendant contradicting the evidence offered by plaintiff; but the jury have accepted the plaintiff’s version of the occurrence, and we find no error which gives the defendant any just ground of complaint.
There was some additional testimony offered on the present trial as to the existence or non-existence of a rule on the part of the defendant forbidding the plaintiff to take a position on the pilot of the engine. This was submitted to the jury and found against defendant under the following charge (after correctly charging as to the effect of such a rule, if the same existed) :
“If the jury find from the evidence that the rule which was offered by the defendant was habitually violated, to the knowledge of the defendant, or of those who stood towards the plaintiff in the position of vice-principals, or if the jury find from the evidence that the rule was so frequently and openly violated for such a length of time that the defendant could, by the exercise of ordinary care, have ascertained that it was being violated, the Court charges you that if you find these to be the facts, the rule is considered in law as being abrogated, and would have no effect upon the acts of the plaintiff.”
*80This charge is in compliance with our former decision, and we still tbink it declares the correct doctrine on the question.
The only objection seriously urged upon the argument here was that the Judge should have instructed the jury that on the entire evidence, if believed, they should answer the issue as to contributory negligence in favor of the defendant.
This would be, in effect, to sustain defendant’s motion to nonsuit; and as said by Douglas, Judge, in Coley’s ease, 129 N. C., at page 413: “It is well settled that on a motion for nonsuit, or its counterpart, the direction of a verdict, the evidence for the plaintiff must be accepted as true, and construed in the light most favorable to him.”
Applying this rule to the facts before us, we are of opinion that the position contended for by defendant cannot be sustained.
The plaintiff, among other things, testified as before, that he was an employee working on a freight train of defendant, and was known as the “front train hand”; that on the night of 29 November, 1902, as this train was going into the yard at Hamlet, N. 0., he was injured by having his foot run over and crushed by the engine of the train on which he was working; that it was a part of plaintiff’s duties at such times to keep a lookout in front of the engine, that he might change the switches, when required, for the proper moving of the train and to protect his train from loose cars which might be on the track; and in order to be ready to perform his duties efficiently the proper placing was on the pilot of the engine; that all the engines plaintiff had ever worked on to this time had a step on the pilot for the use of the train hand, and also a hand-hold running around the beam of the pilot by which he could hold on with reasonable safety; and plaintiff was instructed, both by the engineers and conductors of freight trains, who had charge of the same, to take this position on the pilot when engaged in this duty. That all other *81bands did so wben engaged in tbe work, and tbat an employee could not properly perform tbis duty, as it was required of bim, in any other position.
Stating tbe evidence on tbis point by question and answer in tbe redirect examination, tbe evidence appears as follows:
Q, Wben yon entered a yard to change those switches, or perform those duties you bad to perform, would tbe engineer stop for you to do it ?
A. No, sir; be would not stop for me to get off or on. They would not have a man they would have to stop for. They would curse bim and turn bim off.
Witness further testified tbat on tbe night in question, as tbe train entered tbe yard at Hamlet, plaintiff bad gone forward and changed tbe switch and came back to take bis usual position on tbe pilot, tbe engine running along tbe track about as fast as a man could walk; tbat plaintiff got on tbe engine, putting bis foot on tbe step provided for the purpose; and after having taken this position, tbe engine made some jolt or eccentric movement caused by a depression of tbe track, or otherwise, and plaintiff was thrown on tbe track in front, and bis foot run over and crushed, .as stated; tbat plaintiff was thrown because this engine did not have tbe usual band-bold along tbe pilot beam; tbat it was on all tbe engines tbat plaintiff bad ever worked on before, and plaintiff did not know it was lacking here wben be got on, or he would not have done so.
If tbis statement is accepted as true, tbe plaintiff, on general principles applicable to cases of tbis character, would have a clear right of action, and there would seem to be no casé of contributory negligence presented. Certainly tbe Judge could not bold, as a matter of law, that plaintiff was guilty of contributory negligence.
Apart from this, it will be noted tbat there is no carelessness imputed to plaintiff here in bis personal conduct, except that of working on in tbe presence of a defective appliance or *82machine, which, as stated in a former opinion, has been ■usually dealt with under the head of assumption of risk; and this defense, under our statute on the subject, as construed by the courts, has been eliminated in cases of this character.
The statute, Private,Laws 1897, ch. 56, sec. 1, provides that whenever an employee of a railroad company operating in the State is injured or killed by reason of the negligence of another employee, or by reason of any defect in machinery, way, or appliance, he shall have a right of action.
Section 2 provides that any contract or agreement, expressed or impliedj made by employee to waive the benefit of the general section shall be null and void.
In Coley’s case, 128 N. C., 534, the Court held that assumption of risk, being in its nature a contractual defense, was not open to defendant in a case of this kind, and a verdict and judgment for plaintiff was sustained.
A reference to the facts of Goley’s case, stated in the opinion of the Chief Justice on page 534, will show that the cause was one in all its essential features exactly similar to the one before us; the only difference being that in Goley’s case the employee had taken the usual and customary position on the rear of a shifting-engine which was moving backwards, and was thrown on the track and injured by reason of a defective engine in not having a grab-iron by which employees engaged in that duty were accustomed to hold on and save themselves, while in the case before us the defect was in front of the engine, which was moving forward. In that case, too, a recovery was sustained, though the defect was known and -observed ; while here, the plaintiff testified that he did not know of the defect; and the testimony does not disclose that he had any opportunity to notice the absence of the handhold till the emergency was upon him. In both cases, however, the employees had taken, or were endeavoring to take, the position they were required to take in the proper performance of their duties.
*83As said in tbe present case, on tbe former appeal, tbis construction of tbe statute “does not at all import that in cases of tbe kind we are now considering the plaintiff is absolved from all care on bis own part. Except in extraordinary and imminent cases, like those of Greenlee and Troxler, be is still required to act with that due care and circumspection which tbe presence of such' conditions require. And, if apart from tbe element of assumption of risk, tbe plaintiff, in bis own conduct, has been careless in a manner which amounts to contributory negligence, bis action must fail.”
We are referred by defendant to a large number of cases which seem to bold that it is negligence per se to take a position on tbe pilot of an engine, and more especially on that portion of it popularly known as tbe cow-catcher. But an examination of tbe facts of these cases will, in every instance, disclose that tbe injured person seeking redress bad voluntarily taken such a position; and was either not an employee of tbe train at all, or was not required to take such a position in tbe necessary and proper performance of bis duty.
Thus, in Warden v. Railroad, 94 Ala., p. 277, tbe plaintiff was a brakeman who bad voluntarily taken bis position on tbe pilot when no duty required him to do so.
Said McGlellan, Judge: “It does not appear that be had any duties to perform, or that any of bis duties could be performed on the pilot crossbeam or cow-catcher, or that it was in any sense necessary for him to be on tbe crossbeam in front of tbe engine at any time.”
In Railroad v. Jones, 95 U. S., p. 439, plaintiff was not an employee as a train band, but bad voluntarily taken a position on tbe pilot of an engine when be bad been warned against riding on tbe pilot and forbidden to do so. Tbe distinction is well brought out in a case from tbe Georgia Reports, quoted in one of the briefs (Railroad v. Myers, 112 Ga., 237), as follows:
*84“That such employee and others of bis class bad been in tbe babit of riding on tbe locomotive, and that be, at tbe time of tbe catastrophe, was so doing with tbe knowledge of tbe conductor and engineer, and that this was in pursuance of a custom known to tbe officials of tbe company, did not render tbe above rule inapplicable, unless it further appeared that tbe deceased was on tbe locomotive in obedience to some order which be was bound to obey, or in tbe discharge of some duty which it was incumbent on him to perform.”
As we have heretofore seen, tbe plaintiff’s evidence was to tbe effect that be was, at tbe time of tbe injury, on tbe pilot of tbe engine by order of bis superiors and in tbe necessary performance of bis duties; and having been injured by reason of a defective machine, and being guilty of no carelessness on bis own part, personal conduct, bis right of action is established.
There is no error in tbe record to tbe prejudice of defendant, and tbe judgment below is affirmed.
No Error.