We bave examined, tbe entire record, and. bave considered tbe numerous exceptions tendered by tbe defendant, and find nothing of wbicb it can justly complain on tbe first and second issues.
Tbe evidence does not disclose a real controversy between tbe plaintiff and tbe defendant as to negligence, and tbe. court would bave been justified in directing tbe jury to answer tbe first issue “Yes,” if tbe evidence was believed.
In addition to tbe presumption of negligence arising from a derailment (Marcom v. R. R., 126 N. C., 200; Wright v. R. R., 127 N. C., 229; Hemphill v. Lumber Co., 141 N. C., 487), there was ample evidence that tbe roadbed was unsafe, that tbe grades and curves were unusual and dangerous, and that tbe equipment was defective, and there was no evidence to tbe contrary.
Mr. Hill, superintendent of tbe defendant, who was introduced by tbe plaintiff, gives an account of tbe condition of tbe road and its equipment, wbicb shows utter indifference on tbe part of tbe defendant to tbe safety of its employees. He says: “I do not know tbe condition of tbe track where the engine ran off; from tbe mill down there were some very bad places. Tbe place where tbe wreck occurred bad little to do with it; it was tbe place where tbe engine started, from where it left tbe mill to where it went off. Tbe track has about a 4 per cent grade in some places and in others about 10 per cent; it would perhaps run about tbe length of this ball at .4 per cent, and then dip suddenly to a 10 per cent grade. There are some reverse curves and some very sharp curves. Just before you get to tbe point where tbe engine left tbe track, you come around a sharp curve and take a right smart dip, and it is almost straight for twenty or thirty yards, and you make a curve, a good stiff curve, and that is where tbe accident occurred; it was a long and very continuous curve. I know that the car was loaded with lumber when be started out. I can’t say that Mr. Worley was given orders to bring tbe car out, but I told Worley not to bring that car out until it was fixed. Tbe mill foreman over*496looked the bringing out of cars from the mi'll. He was Yan Anderson, and Robert Lieb was over him. I can’t recall who ordered the car loaded; don’t know. All that was hearsay, so far as I am concerned. The brake was not put on properly, the rod that comes over and under the brakes — the brake-rod; I suppose you call it — passed under the rocking bolster, which the plank laid on, and this rod for some reason would work back next to the king pin, that comes through the rocking bolster, that holds it, and when you went to make a curve, that bolster would shut down on it, and you could not put the brakes on, and if there were several curves you would get a pretty good start, and it would be hard to control the train. The cars had wooden brake-shoes. I don’t think thefe was ever another car made like it, before or since. The wheels turned on the axles. They insisted on loading the ears so heavy at the mill that I gave orders not to load over 3,500 feet on this particular car, and on other cars, and they often had on 5,000 feet. It made thpm so heavy that a car of that size and the tonnage of the lumber would weigh twenty tons, and without proper brakes behind a ten-ton engine. When you loaded with more than 3,500 feet, with the weight of the car, the weight was more than the engine had the capacity of controlling. The wheels on the cars were not regular car wheels in common use at that time; they were old car wheels. They looked like they were twenty or thirty years old. They turned on the axle and we often had to take the axle out. Sometimes there would be an inch play, and the car wheel would wobble as it went down the track, and when loaded so heavy it sorter cut and dug into the rails and climbed off. This car had been practically in the condition I have stated ever since it was built; there was only a piece of iron that was supposed to hold the brake-rod back, and it would break and they would put another little piece of iron in there, and it would break, and the next week something would happen again. I don’t know whether the brakes on that car were like those in ordinary use on railroads of that date or not. I never saw a car like it before, and the brakes were in keeping with the car.”
*497His Honor, however, instead of directing the jury to answer the first issue “Yes,” if they believed the evidence, submitted the question of negligence to them, and gave substantially the first and second prayers for instructions. He could not have given the third, because there was evidence that, after the order of Hill, an employee of the defendant, equal in authority to Hill, gave him a different order.
The principal contentions of the defendant on the issue of .contributory negligence are that the plaintiff continued to operate the train with knowledge of the defects and the danger, and that he was acting contrary to the orders of his superintendent, Hill.
We do not approve the doctrine that an employee is barred of a-recovery because he realizes that he is using a defective appliance, and has some appreciation of the danger of doing so, and think the better rule is that under such circumstances there is no contributory negligence unless the employee is guilty of a negligent act in doing his work, or the danger is so obvious that the chances of injury are greater than those of safety. Thomas v. R. R., 129 N. C., 394; Hicks v. Cotton Mills, 138 N. C., 332.
The contention of the defendant, if sustained, would encourage employers to use antiquated and defective machinery, and to notify employees of the danger, as they would thereby escape Lability for injury.
The prayers for instruction based on the idea that the plaintiff could not recover if he acted contrary to the orders of Hill, were properly refused, because there was evidence that the plaintiff, at the time of his injury, was acting under the orders of another superintendent who had the authority to control him.
The principle embodied in the eleventh request for instruction is supported by authority, and may be technically correct, but we think, if applied in instructing juries, it would tend to confuse and mislead, and that it is wiser to adhere to the practice which requires the judge to explain the conduct of the plaintiff which will amount to negligence, and that if there is negligence which is the real cause of the injury, he cannot recover.
*498If we depart from tbis rule and say that the slightest negligence on the part of the plaintiff contributing to his injury is-fatal to his cause of action, we must apply the same standard to the conduct of the defendant when considering the first issue, and in practical operation, the search for the real efficient cause of the injury may easily be lost sight of.
Again his Honor could have denied all the prayérs for instructions on the second issue, because the Only conduct of the plaintiff alleged in the answer to have been negligent was in the operation of the train, and there was no evidence of negligence in this particular.
On the issue of damages his Honor told the jury that the loss of mental powers by the plaintiff might be considered as an element of damages, when upon an examination of the evidence there is no suggestion that the plaintiff was at any time unconscious or that he suffered even momentarily an impairment of mental powers. We doubt if this affected the verdict, but we cannot say it did not, and under the authorities in this State this instruction was erroneous. Smith v. R. R., 126 N. C., 712; Wilkie v. R. R., 128 N. C., 113; Bryan v. R. R., 134 N. C., 538.
In the Bryan case a new trial was ordered because a charge was given that the jury might consider the loss of physical and mental powers in estimating damage, when there was no evidence of the loss of mental powers, and this case was approved in Jones v. Insurance Co., 153 N. C., 391.
We must, therefore, order a new trial, but it is restricted to the issue of damages.
Partial new trial.
MOTION TO DISMISS.
This is a motion to dismiss the appeal or to affirm the judgment, upon the ground that there are no exceptions in the record upon which the assignments of error are based.
Exceptions to evidence must be entered during the progress of the trial, and it is not sufficient to object. The exception must be noted.
Exceptions to the charge may be taken for the first time when the ease on appeal is settled, and should point out the parts of the charge to which exceptions are taken.
*499The preparation of the assignment of error is the work of the attorney for the appellant, and is not a part of the ease on appeal, and its office is to group the exceptions noted in the case on appeal, and if there is an assignment of error not supported by an exception, it will be disregarded.
Applying these principles to the record in this case, the motion of the appellee must be denied.
The case was not settled by the judge, but by agreement of counsel. The exceptions and assignments of error follow the charge, and immediately thereafter we find the signatures of counsel for plaintiff and defendant, and each assignment begins, “The defendant excepted for that,” etc.
This is, in our opinion, an agreement by counsel that the exceptions set out in the assignments were duly entered.
Motion denied.