The record discloses “It is agreed that this action comes under the Federal Employers’ Liability Act.”
*111Under the decisions of the Supreme Court of the United States, an employee in an action of this kind cannot recover for an injury unless there was negligence on the part of the employer, and that negligence was the proximate cause of the injury. In the present case, plaintiff was working under the engineer, who from the facts was the alter ego of defendant. Taking the evidence in the light most favorable to plaintiff, we think the questions of negligence and proximate cause were for the jury to determine.
Plaintiff’s evidence is substantially as follows: The boiler which plaintiff was supposed to fire was on the ditching machine. "When the plaintiff got to the north end of the ditching machine the shovel or bucket was still resting on the north end of the flat car, thereby preventing the wheels of the machine from rolling down the incline, and the engineer, who was on the machine but had not placed the same in operation, was four or five feet from the plaintiff and in a position where he could see the plaintiff. "When the plaintiff got to the north end of the ditching machine he placed his foot on the rail, reached up for the hand-hold, and was in the act of getting upon the ditching machine when the engineer moved one of the levers so as to pick up the bucket or shovel, whereupon the wheels of the machine rolled northward on the rails and upon the plaintiff’s foot, thereby crushing it. The plaintiff yelled at the engineer three times, but the latter did not pay any attention to him. He continued with the usual operation of the machine until the shovel was sunk into the bank of dirt, which caused the machine to roll backward off of the plaintiff’s foot. The plaintiff then jumped off of the car to the ground, where he was discovered by the locomotive fireman before the engineer paid any attention to him. At the time when the plaintiff was injured he was mounting the ditching machine in the usual way. The engineer in charge of the ditching machine gave the plaintiff no signal, notice, or warning whatsoever that he was going to put the machine in operation. The plaintiff testified, “He could see me.” Cook v. Manufacturing Co., 182 N. C., 205; S. c., 183 N. C., 48.
The defendant’s evidence was to the contrary, but, on a motion to nonsuit, we consider only the evidence most favorable to plaintiff.
For the reasons given, the judgment below is
Eeversed.
Devin, J., took no part in the consideration or decision of this case.