(Filed 9 November, 1921.)
Railroads — Director General — ~War—Actions—Procedure.
An action to recover damages against a railroad company for a personal injury negligently inflicted wlifle operated by tbe Director General as a war measure, will not lie, and, on appeal, will be dismissed without prejudice to tbe plaintiff’s right of action against tbe Director General of Railroads.
Appeal by defendant from Finley, J., at March Term, 1921, of Guilfoed.
Action to recover damages for an alleged negligent injury to plaintiff while performing the duties of a brakeman in the city of Danville, Va., on 24 March, 1919.
*775It appeared from the plaintiff’s evidence that at the time of the accident and injury complained of the plaintiff, and those in charge of the train upon which the injury occurred, were employed by and working for the Director General of Eailroads under the United States'Eailroad Administration.
The Director General has not been made a party to this action, and the Southern Eailway Company is the only defendant.
There was a motion to dismiss upon the ground that the Federal Control Act (1920) did not impose any liability upon the defendant on any cause of action arising out of the operation of its system of transportation by the United States Government; and that, therefore, a suit for such an injury could not be maintained as against it. This motion was overruled; and upon the usual issues of negligence, contributory negligence, and damages being answered by the jury in favor of the plaintiff, and from a judgment rendered thereon, the defendant Southern Eailway Company appealed.
John A. Barringer for plaintiff.
Wilson & Frazier for defendant.
Pee OubiaM.
Upon authority of the recent decision of the United States Supreme Court in Mo. Pac. R. R. Co. v. Ault, decided 1 June, 1921 (since the case at bar was tried in the Superior Court), and reported in the Advanced Opinions of that Court, at page 647, No. 16, 1 July, 1921, the present action will be dismissed without prejudice to the rights of the plaintiff to proceed hereafter against the Director General of Eailroads.
Action dismissed.