after stating the case: "We have arranged the statement of the case so as to present only so much of it as relates to the defendant’s assignment of errors. The court instructed the jury that if they did not find that the coupler was defective they would answer the first issue “No,” and if they found that it was defective, they would still answer the issue “No,” unless they also found that the defect was due to the defendant’s negligence in failing to exercise proper care in the inspection and repair of the coupler, which contributed proximately to the plaintiff’s injury. The record shows that “the court stated fully the contentions of the parties and reviewed the evidence bearing upon the same.”” There are four questions presented in defendant’s exceptions :
1. Did the court err in holding that this was a transaction of interstate commerce to which the Federal laws applied ?
2. Was it competent for the jury to consider additional suffering or shock caused by the second surgical operation ?
3. Was it proper for the court to refuse to submit the issues tendered by the defendant and thereby withdraw the questions of assumption of risk and contributory negligence from the jury?
4. Was there any affirmative error in the charge?
1. The first question may be well disposed of by a bare reference to the evidence. The witnesses, both for plaintiff and defendant, agreed in their testimony that the train in which was, what is called in the case, the “bad order car” had been made up, as an extra train, at South Rocky Mount, N. C., and was then ready to proceed to Florence, S. C., when the defect in one of its cars, there being forty-five in all, was discovered and that car was removed from the train. The engine which was to carry the train to Florence, S. C., had steam up and R. C. Garland, the engineman, was in the cab, and moved the train under signals from the *451plaintiff. Tbis would seem to properly characterize this train as one engaged in interstate commerce, and while the plaintiff was employed on a local shifting engine, any injury to him through the negligence of the defendant, while he was engaged in cutting out the “bad order car” from this train, is regarded in law as one received while he was “employed in such commerce.” This view of the question is sustained by Pedersen v. D. L. and W. Railroad Co., 229 U. S., 146, from which we extract the following principles:
1. Under the Federal law a right of recovery exists only where the injury is suffered while the carrier is engaged in interstate commerce and while the employee is employed in such commerce; but it is not essential that the coemployee causing the injury be also employed in such commerce.
2. One engaged in the work of maintaining tracks, bridges, engines, or cars iff proper condition after they have become, and during their use as, instrumentalities of interstate commerce, is engaged in interstate commerce, and this even if those instrumentalities are used in both interstate and intrastate commerce.
3. An employee carrying materials to be used in repairing an instrumentality of interstate commerce is engaged in such commerce, and, in this connection, it was held that such an employee carrying bolts to be used in repairing an interstate railroad, and who was injured by an interstate train, is entitled to sue under the Federal law in regard to an employer’s liability, it being the act of Congress of 1908, the true test' being: Is the work in question a part of the interstate commerce in which the carrier is engaged?
It follows, therefore, that if the train described in this case was engaged in interstate commerce, the act of the defendant in cutting out the “bad order car” was performed by him while employed in such commerce, for the two cases, in principle, at least, are clearly analogous. This will appear by a consideration of the language of the Court in the Pedersen case, where Justice Van Devanter said: “The statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct “any defect or insufficiency ... in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment”- used in interstate commerce. But independently of the statute, we are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements and the nature of each determined regardless of its relation to others or to the business as *452a whole. But this is an erroneous assumption. ... Of course, we are not here concerned with the construction of tracks, bridges, engines, or cars which have not as yet become instrumentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumentalities and during their use as such.”
The question then recurs: Was this train, at the time of the injury, being used in interstate commerce? We are of the opinion that an affirmative must be given to this question,.if we follow, as we are required to do, the decisions of the highest Federal court in N. C. Railroad Co. v. Zachary, 232 U. S., 248, 260, and the cases therein cited, especially St. Louis and San Franciso Ry. Co. v. Seale, 229 U. S., 156, 161. In the Zachary casa the engineer, after inspecting, oiling, firing, and preparing his engine for starting on a trip from Selma, N. C., to Spencer, N. C., was killed by an engine of defendant railroad company which was being negligently moved on one of its tracks and while he was crossing the track on his way to his boarding-house for supper. The train was to carry interstate cars, which came from Virginia, but they had not been coupled up at the time of the injury. It was held that he was at the time employed in interstate commerce and his case was governed by the Federal law, although he had mere prepared his engine and cars for the journey, but had not moved them from the station. In the case of Railway Co. v. Seale, supra, the injury occurred while the employee, who was a yard clerk, was engaged in the duty of inspecting and making a record of car seals and of checking the cars with the conductors’ lists. While he was going to a train which had come from another State to perform this kind of work, he was struck and fatally injured'by a switch engine, which, as was claimed, was being negligently operated by the defendant railway company. With reference to these facts the Court said in 229 U. S., at p. 161: “The interstate transportation was not ended merely because the yard was a terminal for that train, nor even if the cars were not going to points beyond. WTiether they were going further or were to stop at that station, it still was necessary that the train be broken up and the cars taken to the appropriate tracks for making up outgoing trains or for unloading or delivering freight, and this was as much a part of the interstate transportation as was the, movement across the State line,” citing McNeill v. Southern Railway Co., 202 U. S., 543, 559, and Johnson v. So. Pac. Co., 196 U. S., 1, 21.
If the breaking up of a train which has come from another State is a part of interstate commerce, we do not perceive why the making up of the train, its inspection and proper repair are not equally acts of interstate transportation. See, also, Railway Co. v. Lindsay, 233 U. S., *45342. In III. Cent. Railroad Co. v. Behrens, 233 U. S., 473, while not deciding tbe question, it is strongly intimated, at tbe close of tbe opinion, that an employee engaged in work such as was done by tbe plaintiff in this case would be considered as engaged in interstate commerce and protected by tbe Federal Employer’s Liability Act and tbe Safety Appliance Act as well. Johnson v. Great Northern Ry. Co., 178 Fed. Rep., 643. We have again discussed this question somewhat at length, not only because of tbe zeal and earnestness with which tbe contrary view from ours was‘pressed upon our consideration, but because of its growing importance in a large number of eases. Our opinion is, though, that it is settled adversely to tbe defendant’s contention in Lloyd v. Railroad Co., 166 N. C., 24. Tbe two cases are. identical in their facts, so far as this point is concerned, and if Lloyd?s case stands tbe test of tbe higher court to which it has been carried by writ of error, it will be thoroughly decisive of the question we have discussed, and in respect to the view we have taken of it. But if the plaintiff was not, at the time of the injury to him, employed-in interstate commerce, as the alleged negligent wrong was committed since chapter 6 of Public Laws of 1913 was enacted (3 February, 1913), that is, in June, 1913, the ease is governed by the provisions of that law, which are identical, substantially, at least, with the Federal statute, and in this view the question may be considered of little practical importance, as was held in C. & N. Railway Co. v. Gray, 35 Supreme Court Beporter, p. 620. Under the State law, assumption of risk is not available to the defendant, as the injury was caused by a defect in appliances, and contributory negligence is treated in the same manner as under the Federal statute.
2. This also disposes of the third question we have stated, which involves the’ correctness of the ruling by which the court refused to submit the issues tendered by the defendant. The jury having found that the plaintiff was injured by a defective coupling, the defenses of assumption of risk and contributory negligence were eliminated, both under the Federal and State law.
3. The second question raised by defendant, that it was not; liable in damages for any increased injury resulting from the second surgical operation, is, we think, without merit, in the view we take of the record. The prayer of the defendant would require the court to instruct the jury that in no view of the case was it liable for such additional injury, whereas its liability depended upon whether the second operation was made necessary by defendant’s negligence as a proximate result thereof or was caused solely by the unskillful manner in which the first operation was performed. The court instructed the jury that it must have been a necessary consequence of the injury which resulted from the de*454fendant’s negligence. Defendant bas no reason to complain of tbis instruction, for it was as favorable to it as could be expected, and moreover it implied that if tbe additional pain and suffering were caused solely by tbe unskillfulness of tbe surgeon wbo performed tbe first operation, defendant would not be liable tberefor.
4. We can see no error in tbe charge of tbe court. It properly instructed tbe jury that if tbe injury was caused by a defect in tbe coupler due to defendant’s negligence, contributory negligence of tbe plaintiff would not defeat bis recovery. Tbis is correct, as it is so expressly provided in tbe Federal Employer’s Liability Act and our statute of 1913. And tbe same may be said as to assumption of risk, as tbe two defenses, in tbis respect, are subject to tbe same principle under tbe Federal statute, as will appear by reference to sections 3 and 4 of tbe said act of Congress. As to assumption of risk, similar provision is made by our law. Public Laws 1897, cb. 56 (Revisal, sec. 2646). Elmore v. R. R. Co., 132 N. C., 865.
After a careful review of tbe ease, we find tbat no error was committed by tbe court at tbe trial of tbe case.
No error.