ClaRksoN, J.
This action was here before — Batton v. R. R. Co., 210 N. C., 756. There were two causes of action alleged by plaintiff in his complaint: (1) For personal injuries which the plaintiff suffered when he fell from a platform in the town of Weldon, N. 0., while he was engaged in the performance of his duties as an employee of the defendant, and (2) for personal injuries which the plaintiff suffered after he had fallen from said platform.
The action was heard on defendant’s demurrer to the second cause of action. The court, being of opinion that the facts stated in the complaint as constituting the second cause of action were not sufficient to [264]*264constitute a cause o£ action against tbe defendant, sustained tbe demurrer and dismissed tbe action as to said second cause of action. Plaintiff appealed to tbis Court.
Tbis Court said, at p. 765: “In tbe instant case it is not alleged in tbe complaint tbat any of tbe employees of tbe defendant was present at tbe time tbe plaintiff fell from tbe platform at Weldon, or tbat tbe defendant bad actual knowledge of tbe condition of tbe plaintiff as tbe result of bis fall. Nor are facts alleged in tbe complaint from wbicb it can be beld tbat tbe defendant bad constructive knowledge of such condition. ... No facts are alleged in tbe complaint wbicb imposed upon tbe defendant or its employees tbe duty to presume to tbe contrary. Conceding tbat if tbe defendant bad known tbat tbe plaintiff bad fallen from tbe platform at Weldon, and bad suffered injuries wbicb required immediate attention, medical or otherwise, tbe law would have imposed upon tbe defendant tbe duty to exercise reasonable diligence to provide such attention, we cannot' bold tbat in tbe absence of such knowledge such duty was imposed upon the defendant. We therefore find no error in tbe judgment dismissing tbe second cause of action alleged in tbe complaint.”
It is admitted, and found by tbe jury, tbat at tbe time of plaintiff’s injury tbe defendant was engaged in interstate commerce. Therefore tbe action is governed by tbe Federal Employees’ Liability Act. Tbe decisions of tbe Federal courts control tbe State courts in all actions prosecuted in tbe State courts, but tbe rules of practice and procedure are governed by tbe laws of tbe State where tbe cases are pending.
In Hamilton v. R. R., 200 N. C., 543 (552-3-5), we find:
“Tbe Second Federal Employers’ Liability Act was beld valid. 223 U. S., 1, 56 L. Ed., 327. ‘The first section provides tbat every common carrier by railroad while engaged in interstate commerce shall be liable to every employee while employed by such carrier in such commerce or, in case of bis death, to certain beneficiaries therein named, for such injury or death, resulting in whole or in part, from the negligence of the carrier, or its employees, or by defects or insufficiencies due to' negligence in any of Us equipments or property. Tbe second section provides that every common carrier by railroad on lands of tbe United States other than states shall bo liable in tbe same way to any of its employees. The third section prescribes that contributory negligence shall not bar recovery, but shall only diminish the damages, except tbat no employee injured or hilled where the violation of a safety law for employees contributed to the injury, shall be held to have been guilty of contributory negligence.’ . . . (553) 'Further prescribes that the jurisdiction of the courts of the United States under the act shall be concurrent with that of the courts of the several states, and no case arising under tbe act [265]*265and brought in any State court of competent jurisdiction shall be removed to any court of the United States.’ (Italics ours.) . . . (P. 555.) ‘The term “Negligence” has been defined by the National Supreme Court to be the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the situation. Negligence has always relation to, the circumstances in which one is placed, and what an ordinarily prudent man would do or omit in such circumstances. Charnock v. Texas & R. R. Co., 194 U. S., 432, 48 L. Ed., 1057.’ Roberts, supra (2 Fed. Lib. and Car. [2nd Ed.], 1929, sec. 811, pp. 1558-9). In Baltimore & O. R. R. Co. v. Groeger, 266 U. S., at p. 24, we find: ‘The credibility of witnesses, the weight and probative value of evidence are to be determined by the jury and not by the judge. However, many decisions of this Court establish that, in every case, it is the duty of the judge to direct a verdict in favor of one of the parties when the testimony and all the inferences which the jury could justifiably draw therefrom would be insufficient to support a different finding.’ ”
The defendant made motions in the court below for judgment as in case of nonsuit at the close of plaintiff’s evidence and at the close of all the evidence. C. S., 567. The court below overruled these motions, and in this we can see no error.
The following prayers for special instruction to the jury, requested by defendant, were properly refused by the court below: “(1) If you find the facts to be as testified to by all the witnesses, the court instructs you to answer the first issue ‘No.’ (2) If you find the facts to be as testified to by all the witnesses, the court instructs you to answer the third issue ‘Yes.’ (3) The court instructs you that the plaintiff’s negligence was the sole and direct cause of his injury and you will, therefore, answer the first issue ‘No.’ ”
(1) Was there sufficient evidence to be submitted to the jury that plaintiff was injured by the negligence of the defendant, as alleged in the complaint ? We think so.
In 2 Roberts Federal Liabilities & Carriers (2nd Ed.), sec. 711, p. 1337, it is said: “The courts are agreed that the Federal Employers’ Liability Act, being a humane and remedial statute, should invariably be given a liberal construction, to the end that the remedy proposed shall be advanced, and that the evil against which it was directed shall be corrected.”
We set forth the evidence at length. All exceptions by the defendant to the competency of the evidence have been abandoned. The defendant [266]*266introduced no evidence. It is well settled by tbis and tbe Federal Court that the evidence must be taken in the light most favorable to the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom.
The plaintiff, a flagman, had certain positive and important duties to perform at Weldon, when the train stopped there, to protect his employer. The train on this occasion had 19 cars, though it usually carried 17. The engineer knew this. The rear car was a private car, fastened by a Yale lock on the inside. The engineer had always theretofore cleared the railroad trestle, which was some 60 feet high. The custom was to stop on the platform. On this occasion he neglected to do so. He knew the flagman’s duties when he stopped at Weldon — they were defined in the rules and regulations of the railroad company as follows: “Flagman must take care of the markers and other rear, train signals, put them in place, see that they are properly displayed ánd that the signal lamps are clean, trimmed, burning brightly and that the markers are kept adjusted to the track.” It was a dark and rainy night. There were no lights at the rear of the platform at all for some 5, 6, or 7 car-lengths. The lights were only where the passengers got off near the station; this was about 1,000 feet from the northern end of the platform. Plaintiff got off the train to do his duty. He walked along the platform inspecting the train, to adjust the markers and blow out the steam. There was no barricade or anything indicating that it was the end of the platform, and while walking along, actually engaged in inspecting the two cars, with a lantern intended for the purpose of giving-signals and not capable of illuminating his surroundings, with no idea that he was anywhere near the end of the platform, he fell some 60 feet. The space of three feet at the end of the platform was altogether unprotected, entirely open. This is the space adjacent to and alongside the train. There was no obstacle of any kind to impede his progress or to stop him until he got to the northern end of the platform, and then, proceeding in the line of duty, he fell off the end of the platform. It was incumbent on plaintiff To take care of the markers and rear train signals. On this occasion one of the markers was twisted around, and to adjust this and perform the other duties required of him under -the rules, he proceeded on, without warning, and was injured.
In Jamison v. Encarnacion, 281 U. S., 635 (641), 74 Law Ed.,. 1082 (1085-6), it is written: “The act is not to be narrowed by refined reasoning or for the sake of giving 'negligence’ a technically restricted meaning. It is .to be construed liberally to fulfill the purposes for which it was enacted, and to that end the word may be read to include all the meanings given to it by courts and within the word as ordinarily used. Miller v. Robertson, 266 U. S., 243, 248, 250, 69 Law Ed., 265, 271, 272, 45 Sup. Ct. Rep., 73.”
[267]*267In 18 E. C. L., “Master and Servant,” sec. 95, pp. 593, 594, 595, is tbe following: “Although the doctrine has met with some opposition, the courts have generally held that an employer owes to his employees a duty to make safe the place where they are required to perform their services, failing in which he renders himself liable to an employee who may sustain injuries as the proximate result of his neglect. In this respect as in others, the employer is not liable as an insurer, but is bound only to the exercise of ordinary or reasonable care, the degree depending upon the dangers attending the employment, and the standard being the care exercised by prudent employers under similar circumstances. This duty of the employer is affirmative and continuing, and it cannot be delegated to another so as to relieve the employer of liability in case of nonperformance. The dangers to which the employer’s duty extends are all such as are latent and concealed, and hence beyond the knowledge of the employee. To discover such dangers, the employer must make proper tests and inspections, and after ascertaining their existence he must, as a rule, .give the employee warning thereof. The employee may assume that the employer has discharged this duty, and no obligation rests upon him to make inspections with a view to discovering latent perils. Whether in any particular case the employer has discharged his drity in this respect is ordinarily a question for the jury’s determination.” Highfill v. Mills Co., 206 N. C., 582 (585-6); Riggs v. Mfg. Co., 190 N. C., 256.
We think the evidence sufficient to be submitted to the jury on the issue of negligence. The court below charged clearly the law of negligence applicable to the facts on this issue and proximate cause, to which no exception was taken. '
(2) The question of contributory negligence is out of the picture. The answer to that issue was “Tes.”. The court below charged the rule as to diminished damage, to which no exception was taken.
(3) Did the plaintiff voluntarily assume the risk of injury as alleged in the answer? The jury answered “No.” We see no error on this issue.
“A servant does not assume the extraordinary and unusual risks of the employment, and he does not assume the risks which would not have existed if the employer had fulfilled his contractual duties. But only those risks are assumed which the employment involves after the employer has done everything that he is bound to do for the purpose of securing the safety of his servants, that is, he does not assume the risk of injury from the negligence of the master.” Eichey, Federal Employers’ Liability Act (2nd Ed.), p. 179; Pyatt v. R. R., 199 N. C., at p. 404; Hamilton v. R. R., supra, at p. 561.
This question of assumption of risk is fully set out in Cobia v. R. R., 188 N. C., 487 (491), as follows: “By the common law the employee [268]*268assumes the risks normally incident to the occupation in which he voluntarily engages; other and extraordinary risks and those due to the employer’s negligence he does not assume until made aware of them, or until they become so obvious and immediately dangerous that an ordinary prudent man would observe and appreciate them, citing N. Y. C. R. R. Co. v. White, 238 U. S., 507; Seaboard v. Horton, 233 U. S., 492; Gila Valley, etc. R. R. v. Hall, 232 U. S., 94; Gaddy v. R. R., 175 N. C., 515.”
The principles of law governing the submission of the issue of assumption of risk to the jury are also stated in Cobiafs case, supra, at p. 491, as follows: “In a clear case the question of assumption of risk by the employee is one of law for the court, but where there is doubt as to the facts or as to the inferences to be drawn from them, it becomes a question'for the jury. To preclude a recovery on that ground it must appear that the employee knew and appreciated, or should have known and appreciated the danger to which he was exposed, and in case of doubt, that is for the jury. . . . The burden of proof as to the assumption of risk is upon the defendant; and where there is any doubt as to the facts, or inference to be drawn from them, the question is for the jury.”
In the case of Hamilton v. R. R., supra, certiorari denied, 284 U. S., 636, the court, recognizing departure from the usual practice as a basis of liability, said, at p. 584: “There was evidence to the effect that the Southern, earlier than was customary, went on the ‘exchange track’ to get a car which, in the exercise of due care, it knew or ought to have known was being repaired, and in making the repair plaintiff would of necessity be under the car; it gave no warning before picking up the crippled car by ringing a bell or sounding a whistle; it coupled with unusual and unnecessary force; it did not, as was the custom, stop the train before coupling, and a member of the crew get on the ground and look around and see if the car was ready to be moved; it had no right under the Safety Appliance Act to handle a crippled car.” (Italics ours.)
The charge of the court below on assumption of risk has abundant authorities to support it. For example, the following portions of the charge are supported almost word for word in the cases: “Assumption of risk is founded upon knowledge of the employee, either actual or constructive, of the risks and hazards to be encountered in the performance of his duties and his consent to take the chance of injury therefrom. It is based upon the contract of employment and is distinguished from contributory negligence, which is solely a matter of conduct.” See Horton v. R. R., 175 N. C., at p. 475, quoting from Labatt, Master and Servant, secs. 305, 306. “Under the law the employee assumes the risk [269]*269normally incident to tbe occupation in wbicb he voluntarily engages, except those which are extraordinary or which are due to the master’s negligence.” See Pyatt v. R. R., 199 N. C., at p. 404, and Hamilton v. R. R., supra, at p. 561, both quoting from Richey, Federal Employers’ Liability Act (2nd Ed.), at p. 179. “Extraordinary risks, and those which are due to the negligence of the employer, are not assumed by the employee until he is made aware of them, or until they become so apparent and obvious that any person of ordinary care and prudence could not fail to observe them.” See Maulden v. Chair Co., 196 N. C., at pp. 124, 125; Pyatt v. R. R., supra, 405, 406. “In either case, or both, if" he continues in the work without objection or protest, or without obtaining from the employer an assurance that the danger will be remedied or removed, he is deemed to have assumed them, and ho takes the risk upon himself. If the dangers incident to the employment be so imminent and so apparent that no man of ordinary prudence would continue to rely upon such promises of the employer to remedy them under the circumstances, then he is deemed to have assumed the risks even pending the performance of the promise.” See Seaboard v. Horton, supra, 239 U. S., at pp. 597, 602, affirming Horton v. Seaboard, supra, 169 N. C., 109.
The judge’s charge fairly and adequately stated the doctrine of assumption of risk as it has developed to date since its first recognition in England in 1837 (Priestly v. Fowler, 3 M. & W., 1), its transfer to America prior to the War Between the States (in 1841 — Murray v. R. R., 22 S. C., 385, in 1843 — Farwell v. R. R., 45 Mass., 49, citing both the Priestly and the Murray cases), and its definite acceptance in North Carolina by the turn of the century (Turner v. Lumber Co., 119 N. C., at pp. 398, 399; Smith v. R. R., 129 N. C., at p. 177). At first the doctrine was, at times, confused with the doctrine of contributory negligence (Bittenhouse v. R. R., 120 N. C., 544), but having drawn the line between the two doctrines in Thomas v. R. R., 129 N. C., 392, this Court inked in the doctrine and indicated its general limits in Hicks v. Mfg. Co., 138 N. C., at p. 327, where the Pennsylvania interpretation of the doctrine was accepted as stated in Patterson v. Pittsburgh, 76 Pa. St., 389. The doctrine reached the full flower of growth with the first of the two Horton cases, supra, in the decision of this Court (169 N. C., 109), and those of the United States Supreme Court (233 U. S., 492, and 239 U. S., 595). More recent cases have amplified the definitions and corollaries of the doctrine and traced in many of the refinements of the doctrine. Among the leading cases on the subject in this jurisdiction in more recent years are: Pyatt’s case, supra; Hamilton’s case, supra (284 U. S., 636), certiorari to U. S. Supreme Court denied, and Hubbard v. R. R., 203 N. C., 675.
[270]*270The Federal Employers’ Liability Act, being a humane and remedial statute, should be liberally construed. The assumption of risk as a defense to the recovery of damages had its origin in judicial decisions and may be properly classified as judge-made law. Congress and legislative bodies, from time to time, have endeavored to relieve employees who have suffered injuries from this defense. The trend of legislative action and judicial decisions in modern times, except in rare cases, is that this defense works injustice to employees.
“If the dangers incident to the employment be so imminent and so apparent that no man of ordinary prudence would continue to rely upon such promises of the employer to remedy them under the circumstances, then he is deemed to have assumed the risks even pending the performance of the promise.” Seaboard v. Horton, supra.
It was for the jury to say, under the facts and circumstances of this case, whether plaintiff assumed the risk. Plaintiff was bound to examine the markers, etc., and go to the rear of the car to see that the lights were properly burning, in accordance with the rules. The place to do this was made dangerous by the cars, contrary to custom, stopping over the trestle — unknown to plaintiff. There was nothing to warn him in the performance of a positive duty. No guards, no lights, no platform to walk on to reach the rear of the train to see the tail lights, nothing to put him on notice. This is plaintiff’s view and the jury has so found.
The only exception and assignment of error made by the defendant to the charge: “Now, gentlemen of the jury, if you find from the evidence and by its greater weight, remembering the burden is on the defendant, that the plaintiff knew and understood for a long period of time that this bridge or platform constituted a dangerous situation, and he passed over it a number of times each month for a period of years, and that he continued in the employment of the defendant while fully aware of the dangers, if you find that it was dangerous, and that he continued in the employment of the company, doing the same class of work, following this same train or a similar train, stopping at this same place, then he would be chargeable with knowledge, of course, of the dangers which he himself testified existed, and under the circumstances it would be your duty to find as a fact that he did assume the risk of his employment and answer this issue ‘Yes’; if you find by the greater weight of the evidence.” This exception and assignment of error cannot be sustained. Taking this with the prior parts of the charge, we cannot hold it for error.
This case is distinguishable from C. & O. Ry. Co. v. Niham, 280 U. S., 102, 74 L. Ed., 207; B. & O. R. R. v. Bray, 286 U. S., 272-276, 76 L. Ed., 272; Howell v. R. R., 211 N. C., 297.
[271]*271We think this ease similar in many respects to Inge v. R. R., 192 N. C., 522, where the authorities are fully set forth. Certiorari denied by the Supreme Court of the United States, 273 U. S., 753.
The charge of the court below defined negligence, proximate cause, assumption of risk; properly placed the burden of proof and applied the law applicable to the facts. No exception was taken to any part of the charge except that above set forth. The concluding part of the charge cannot be bettered: “About the best guide that I have ever known for the government of a jury or a judge, or anybody else in passing upon questions which arise between individuals, or between corporations and individuals, and which I will give to you as my parting injunction is: ‘Ye shall do no unrighteousness in judgment; thou shall not respect the person of the poor, nor honour the person of the mighty: but in righteousness shalt thou judge thy neighbour’ (Lev. 19 :15).”
For the reason given we find No error.