SMITH V. RAILWAY CO. employed in painting a car on the defendant's track, and while engrossed in his work a switch engine, attached to cars, was moved on to this track without any signal or warning to the plaintiff, and he was injured. The court held that he was entitled to recover, and, after stating that it is the duty of the defendant to establish rules and regulations to warn workmen on its track, proceeded as follows: "It is true, also, that the cars would probably, at any moment be switched on to the side track on which he was at work; but this would not necessarily, or even probably, import that he knew that the appellant would neglect to give him adequate warning of their approach, and that it was hence unsafe for him to perform the work in obedience to his orders. The mere fact that he knew that cars would probably be switched in upon the side track would not preclude a recovery by him, unless he also knew that it was unsafe to continue his labor; and this was a question for the jury." In Felice v. Railroad, 43 N. Y. Supp., 922, it is said: "It is the duty of the master to use reasonable care to provide for the servant, so far as the work in which he is engaged will permit, a reasonably safe and proper place in which to do his work, and to that end, if the place may become dangerous, by reason of perils arising from the doing of other work pertaining to the master's business different from that in which the particular servant is engaged, to give him such warning of the additional dangers as will enable him, in the exercise of reasonable care, to avoid them or to guard himself against them." In Promer v. Railroad (Wisc.), 63 N. W., 90; 48 Am. St. Rep., 905, the court used the following language: “But the employee does not assume the risk of those dangers which are known by, or can be obviated or avoided by, the exercise of reasonable care and caution on the part of the company. The company is bound to take reasonable care and caution SMITH V. RAILWAY CO. to protect those working in its yards from such dangers, and it would be liable for damages sustained by any employee in consequence of its neglect or failure to discharge its duty in that regard. The duty is one arising from the relation of master and servant, and the servant has a right to assume, until he has knowledge to the contrary, that the master has taken and will adopt such reasonable measures as are within his power to protect him against such dangers while engaged in his work. The master is required to furnish the servant with a safe and proper place in which to perform his work, and while requiring the performance of work by a servant at a place which may or has become dangerous, and such danger may be foreseen and guarded against by the exercise of reasonable care and prudence on the part of the master, it is his duty to exercise such care and adopt such precautions as will protect the servant from avoidable danger, that is to say, such as may be avoided by the exercise of reasonable care and caution on the part of the master." The plaintiff swears that he knew the rules requiring the ringing of the bell and that he was relying on that for his protection; that it was impossible for him to do the work well and at the same time keep a constant lookout for the movements of the engine; that if he put his whole attention on the painting, he could not be on the lookout all the time. There was evidence proper to be submitted to the jury that the bell was not ringing and that the engine was moving at a dangerous rate of speed. We think there was ample evidence, if believed by the jury, to sustain their finding upon the first issue, and we find no error in the instruction to the jury as to the measure of duty which the defendant owed to the plaintiff. The jury having found the second issue in favor of the defendant, it becomes unnecessary to examine the charge of the court in respect thereto. SMITH V. RAILWAY CO. His Honor instructed the jury that the burden was on the plaintiff upon the third issue to show that, notwithstanding his negligence the defendant could have avoided injuring him by the exercise of ordinary care, and if they found that the plaintiff had negligently placed himself in dangerous proximity to the defendant's track and he was engaged in his work with his head down and was unaware of the approach of the train, and if they further found that the defendant's rules required its agents in charge of its trains, whenever they saw a person in such position, to sound the alarm whistle when necessary, and if they further found that the defendant's employee saw, or by the exercise of reasonable care could have seen that the plaintiff was in a dangerous position in time to avoid injury, and ran the train on down the track without proper signal of the approach of the train or stopping it, and that this was the proximate cause of the plaintiff's injury, they should answer the third issue "Yes;" that the defendant contended that the plaintiff was not in a dangerous position until a second before the train struck him, and that after the defendant company discovered that he was in a dangerous position they did all they could to avoid the injury and that it was impossible for them to avoid it; that as soon as he placed himself in that dangerous position, warning was given and the brakes applied at the same instant he was struck; that if they found from the evidence that the plaintiff was in a place of safety up to the time he leaned over to get paint on his brush, and if they found that he did this, and it took him less than a second and that he was stricken instantly upon leaning over, they would answer this issue "No" but it was the duty of the plaintiff to establish his contention as to this issue by a preponderance of the evidence. There was no exception to this charge, and we think that there was evidence to be submitted to the jury to sustain that finding. Upon a careful examination of the entire FRITZ V. RAILWAY CO. record, we think that his Honor's instructions are sustained by See also McLamb v. Railroad, both authority and reason. 122 N. C., 875; Andreson v. Railroad (Utah), 30 Pac. Rep., 305; Beach on Cont. Neg. (Ed. 1899), Sec. 67. Judgment Affirmed. WALKER, J., having been of counsel did not sit on the hearing of this case. FRITZ v. SOUTHERN RAILWAY CO. (Filed June 6, 1903.) NEGLIGENCE-Carriers-Passengers-Personal Injuries-Nonsuit. The plaintiff, attempting to alight from defendant's train. had reached the second step of the platform, when a heavy man caught hold of the car rail, swung himself up on the step, his valise striking plaintiff on the knee and injuring her. The conductor and plaintiff's father were both standing near by. Plaintiff testified it could not reasonably have been anticipated the man was going to hit her. The conductor could have seen the man coming if he had been attending to his business. The rules of the company required conductors to give particular attention to women and children. Under these facts a motion for nonsuit was properly granted. CLARK, C. J., dissenting. ACTION by Bertha Fritz against the Southern Railway Company, heard by Judge Thomas A. McNeill, at October Term, 1902, of the Superior Court of GUILFORD County. From a judgment of non-suit, the plaintiff appealed. L. M. Scott and John A. Barringer, for the plaintiff. CONNOR, J. This action is prosecuted by the plaintiff for the recovery of damages sustained by her on account of the FRITZ v. RAILWAY CO. were alleged negligence of the defendant. The plaintiff alleges, and the testimony for the purpose of the appeal, establishes the fact that she was on the 12th of August, 1899, a passenger on the defendant's train and that she purchased a ticket from Thomasville to High Point, reaching the last named place about 9 o'clock at night. After the train stopped at the station, she together with other passengers left the car at the rear end, following the conductor, for the purpose of alighting. She had reached the second step, and the conductor was standing on the ground, his head turned back over his shoulder in the direction of the engine, in which direction there were some young ladies. If he had been standing straight he would have been facing the plaintiff. The plaintiff's father was standing behind the conductor about three paces, and a little to the west of him. Quite a crowd w at the station. As the plaintiff reached the second step a heavy man with a valise in his hands came rapidly down the side of the car in the direction of the engine, and, as he reached the step caught hold of the car rail and swung himself up on the step, his valise striking the plaintiff on the knee and injuring her. The train was stopped at the usual place. The conductor was in front of the steps. The man intended to board the train, and the conductor told him to stop. He noticed the man after he had gotten up and told him to stand aside where he was, and the man did so. plaintiff, in response to a question, testified: "I believe you said on a former trial that this man came rushing up very hastily in the direction of the engine and made no stop?" Answer, "Yes." "You said that you could not have anticipated that he was going to hit you, and it could not have been reasonably anticipated?" Answer, "Yes." "And you say it now?" Answer, "Yes." When the man got up the plaintiff came down, and when in reach of the conductor he took her hand. The plaintiff had no reason to believe that The |