Tbis is an action to recover damages for injury to one of plaintiff’s eyes caused by tbe bursting of a defective water-glass on a locomotive engine wbicb plaintiff, as engineer, was operating on defendant’s railroad. Plaintiff alleges tbat be was injured while be and tbe defendant were engaged in interstate commerce, and brought tbis action under tbe Federal Employer’s Liability Act of Congress, 22 April, 1908. Tbe parts of said act material to tbis action are as follows:
“Sec. 2. Every common carrier by railroad engaging in commerce between any of tbe several States shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce for such injury, resulting in whole or in part from tbe negligence of any of tbe officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its engines, appliances, machinery, etc.
“Sec. 3. In all actions hereafter brought against any such common carrier by railroad, under or by virtue of any of tbe provisions of tbis act, to recover damages for personal injuries to an employee, tbe fact tbat tbe employee may have been guilty of contributory negligence shall not bar a recovery, but tbe damages shall be diminished by tbe jury in proportion to tbe amount of negligence attributable to such employee.
*148“Sec. 5. Any contract> rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any Kability created by this act, shall to that extent be void.”
The plaintiff testified that he had, in the train, cars of several railroads located beyond the State boundary, a,nd some of them were lumber cars destined for Richmond, Suffolk, Portsmouth, Norfolk, and Franklin, Va., and Pittsburg, Pa. In Johnson v. R. R., 178 Fed., 643, it was held that an employee of a railroad company charged with the duty of seeing to the coupling of cars some of which were being used in interstate commerce was employed in interstate commerce within the provisions of the Employer’s Liability Act. The same was held as to a section-hand working on the track of a railroad over which both interstate and intrastate traffic is moved. Zikos v. R. R., 179 Fed., 893.
In a very recent case decided by the United States Supreme Court, 30 October, 1911, R. R. v. United States, it was held that when the defendant railroad company was operating a railroad which was “a part of a through highway over which traffic was continually being moved from one State to another,” hauled over a paid of its road five cars, the couplers of which were defective, two of the cars being used at the time in moving interstate traffic and the other three in moving intrastate traffic, though the use of the last three was not in connection with any car or cars used in interstate commerce, yet the Federal liability statute applied to said three cars and the defendant was liable to the penalty for not having automatic couplers thereon, because the act applies "on any railroad engaged in interstate commerce.” Applying that decision to' this case, it is very certain that, for a stronger reason, the plaintiff was entitled to bring this action under the Federal statute. He was at the time engaged in hauling cars which were being used in interstate commerce.
The engine on which the plaintiff was placed by the defendant was equipped with a’ “Buckner water-glass,” without a shield or guard.. The plaintiff testified that “While he was in the discharge of his duty, and without any act on his part and *149without his fault, the defective water-glass exploded and injured his eye. . . . That if the water-glass had been supplied with a shield or guard, the glass would not have struck his eye when the tube exploded. . . . And that water-glasses of the character of the Buckner glass are in general and accepted use by the railroad companies operating in this country.”
Pusey, a witness for plaintiff, testified: “If the shield is left off . . . when the inner tube breaks, the glass will fly, but it cannot fly out in front of the shield. . . . It is the duty of the inspectors to examine the engine and report all defects. It was the duty of the inspectors at Raleigh to ascertain and report the defects in this water-glass.” The plaintiff also further testified “that on his return from his first trip with the defective water-glass he applied to Matthews, 'the foreman, for a shield or guard, and was informed by him that the company had none; that they were put on at Portsmouth.” The plaintiff then arranged to have one made himself, but before it was done the glass exploded and for lack of the shield his eye was injured.
The plaintiff ■ was furnished with a defective and dangerous appliance. This constituted negligence on the part of the defendant. Whether the plaintiff was guilty of contributory negligence or not, it is immaterial to consider, for this statute provides that in such actions as this “the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employees.”
In Owens v. R. R., 88 N. C., 502, two of the three judges then constituting the Court held that in an action by an employee against a railroad company for personal injuries sustained by its negligence the burden was 'upon the plaintiff to negative contributory negligence on his part; Mr. Justice Buffin dissenting. Thereupon the Legislature promptly enacted chapter 33, Laws 1887, now Rev., 483, which required the defendant in such cases to “set up in the answer and prove on the trial” contributory negligence as a defense. As the court cannot logically *150direct a nonsuit wben tbe burden of proof is upon tbe defendant (Spruill v. Insurance Co., 120 N. C., 141, and cases citing it in Anno. Ed.), the intent of the statute was evident. This Court, however, in Neal v. R. R., 126 N. C., 634, beld by a divided Court (two judges dissenting) that notwithstanding tbe statute,’ tbe court in such case upon a demurrer to tbe plaintiff’s evidence could direct a nonsuit.
Tbe act of Congress of 1908 clearly forbids a nonsuit to be entered in any case where there is any evidence of negligence on tbe part of tbe defendant. As under tbe statute tbe plaintiff can elect to sue in tbe State court, be has naturally chosen to bring bis action under tbe provisions of tbe Federal statute. Doubtless tbe next Legislature will make similar provision in tbis State.
All that it is necessary for us to say in tbis ease is that tbe plaintiff was engaged in interstate commerce at tbe time of bis injury; that there was evidence of negligence on tbe part of tbe defendant; that tbe plaintiff could elect to sue in tbe State court, specifying in bis complaint, as be does, that be invokes tbe protection of tbe Federal statute, and that under its terms tbe court is forbidden to direct a nonsuit upon tbe ground that there is evidence of contributory negligence shown by tbe plaintiff’s testimony, because tbe statute provides that though tbe plaintiff may have been guilty of contributory negligence, it shall not bar a recovery.
In directing a nonsuit, therefore, tbe judge was guilty of
Error.'