Tbis is an action for tbe wrongful killing of tbe plaintiff’s intestate, under tbe United States Employers’ Liability act, cb. 149, 35 Statutes at Large, 65, amended cb. 143, Statutes at Large.
Exceptions 1 and 2 are that issues as to tbe amount of damages by reason of tbe negligence of tbe defendant and of plaintiff’s contributory negligence were not submitted to tbe jury as separate and distinct issues. But tbe statute does not require tbis. Tbe court instructed tbe jury, in accordance witb tbe statute, to assess tbe damages by reason of tbe death of tbe intestate, if they found it was due to negligence on tbe part of tbe defendant, and to assess tbe amount of diminution on account of.tbe contributory negligence of tbe deceased, and tbe difference, if any, would be tbeir verdict.
Tbe death of the intestate occurred in Virginia, but it was admitted that tbe defendant was engaged in interstate commerce and that tbe intestate was employed by tbe defendant in such commerce at tbe time of bis death. Tbe judge read tbe Federal act on tbe subject and carefully .explained it to tbe jury. He told them that' it required that tbe damages “shall be diminished by tbe jury in proportion to tbe amount of negligence attributable to such employee. Tbis means' that tbe damages shall be diminished in proportion to tbe amount of tbe employee’s negligence, as compared witb tbe combined negligence of himself and tbe defendant, . . . and that where tbe causal negligence, that is, tbe negligence causing tbe death, is partly attributable to tbe employee and partly to tbe carrier, tbe employee shall not recover full damages, but only a proportional amount, bearing tbe same relation to tbe full amount as tbe negligence attributable to tbe carrier bears to tbe entire negligence attributable to both, tbe purpose being to abrogate tbe common-law rtíle exonerating tbe carrier from liability in such cases, and to substitute a new rule confining tbe exoneration to a proportional part of tbe damages, corresponding to tbe amount of negligence attributable to tbe employee.”
Tbe court submitted only tbe two issues, “Whether tbe intestate of tbe plaintiff -was killed by tbe negligence of tbe defendant, as alleged in tbe *435complaint,” and “What damage, if any, is the plaintiff entitled to recover?” But with this instruction the whole matter in dispute was fairly submitted to the jury, and it was not error not to submit separate issues as to how much was assessed by the jury as the total damages and how much was deducted for the contributory negligence. Where the issues submitted fully cover the disputed points it is not error to refuse to submit other issues. Hendricks v. Ireland, 162 N. C., 523, and cases there cited; R. R. v. Earnest, 229 U. S., 114.
Exception 3 is to the admissibility of the testimony of S. W. Jones, that the curve did not interfere with the view at the point 38 rails north of the place of the accident. The testimony was admissible, and the defendant’s brief argues merely the weight to be given such testimony, which was a matter for the jury.
Exception 4 is abandoned, as it does not appear in the defendant’s brief. Buie 34.
Exception 6 was to the refusal to permit the witness Hippert to testify whether, taking into consideration the curve of the .track and the other natural objects there, he could have seen the body beside the track before he did see it. This would have been an expression of opinion which the jury should have drawn from the facts hi evidence, and not the witness. It would be better to admit such evidence, but its admission or rejection can rarely be of sufficient importance to affect the result or justify a new trial.
Exceptions 5, I, and 8 are to the refusal of the motion to nonsuit and to charge the jury to answer the first issue “No.” There was sufficient evidence to go to the jury, and these exceptions need not be discussed. On such motion the evidence must be considered in the most favorable light to the plaintiff. Hodges v. Wilson, 165 N. C., 323; Walters v. Lumber Co., ib., 388. This is familiar learning.
Exceptions 9, 10, 11, 12, 13, 14, and 15 are to the charge of the court, and rest upon the idea that the defendant owed the intestate no duty whatever until the peril of the deceased was discovered by the engineer. This would destroy the entire doctrine of “the last clear chance” in cases of negligence. This is not the intent of the employers’ liability statute, which is in- the interest of the party injured, by making contributory negligence when it exists concurrently with negligence on the part of the defendant, not a complete bar to recovery, as heretofore, but only a matter in abatement in proportion to the comparative negligence of the party injured. The common-law doctrine of negligence still applies, in the construction of the statute, as to the negligence of the defendant. It was the duty of the engineer and fireman to have kept a proper lookout on the track, and if they could not do so, it was the duty of Jhe defendant *436to bave bad still another person on tbe lookout to prevent any avoidable accident. Arrowood v. R. R., 126 N. C., 629. I£ tbe defendant could by reasonable diligence bave discovered tbe critical condition of tbe deceased in time to bave averted tbe injury, it is liable, notwithstanding tbe negligence of tbe deceased. 3 Labatt M. and S. (2 Ed.), 3390, Note 5 ; R. R. v. Ives, 144 U. S., 408.
It is not necessary to discuss more fully tbe facts in tbe case, as they are fully presented in tbe careful charge of tbe corirt, with tbe correct application of tbe law. Tbe distance at which tbe body of tbe deceased could bave been seen was entirely a question for tbe jury upon tbe evidence, as well as the distance within which tbe train could bave been stopped.
Tbe deceased bad put bis red light in tbe middle of tbe track as a danger signal and bad gone to sleep, lying beside tbe track with a white light by him. Tbe engineer testified that be knew that this flagman should be there and that these lights were a danger signal; that be did not undertake to slacken bis speed till be got within 300 feet or less, when be blew tbe signal, and tbe deceased waking and rising up, bis bead was struck by an iron step, which killed him; that if be bad blown tbe signal sooner tbe sleeper would probably bave gotten up in time to bave avoided being struck. There was evidence tending to show that the engineer and fireman were not keeping a proper lookout on tbe track, if any, until they got within 50 yards of tbe sleeper. Dallago v. R. R., 165 N. C., 269.
Tbe whole subject is fully discussed in a late case, Draper v. R. R., 161 N. C., 310, in which Allen, J., states tbe law as follows: “In an action for damages for tbe negligent killing of plaintiff’s intestate, who was down and helpless on tbe track and was run over by the defendant’s train, involving tbe question whether tbe engineer by tbe exercise of ordinary care could bave stopped tbe train in time to bave avoided tbe killing, tbe jury are not bound by the opinions of tbe witnesses, as to tbe distance within which tbe train could be stopped, but may consider tbe evidence as to tbe condition of tbe track, tbe grade, tbe length and weight of tbe train, tbe speed, and other relevant circumstances, and upon tbe whole evidence determine within what distance it could bave been stopped.”
It is not sufficient defense of tbe negligence of tbe defendant that tbe engineer could not bave stopped tbe train in time to avoid tbe death of tbe plaintiff’s intestate after be perceived him on tbe track. Tbe question is whether tbe engineer could bave stopped tbe train in time to bave avoided killing tbe deceased after be could bave perceived tbe danger of tbe deceased, bad tbe engineer and fireman been in tbe exercise of proper *437diligence on tbe lookout. Ray v. R. R., 141 N. C., 87 ; Farris v. R. R., 151 N. C., 491; Edge v. R. R., 153 N. C., 216; R. R. v. Ives, 144 U. S., 408.