ClaRKSON, J.
At tbe conclusion of plaintiff’s evidence, tbe defendant, Southern, moved for judgment as in ease of nonsuit. C. S., 567. Tbe court overruled this motion and tbe defendant, Southern, duly excepted and assigned error.
At tbe conclusion of plaintiff’s evidence, tbe defendant, Seaboard, moved for judgment as in case of nonsuit. C. S., 567. Tbe court overruled this motion and tbe defendant, Seaboard, duly excepted and assigned error.
Tbe defendant, Seaboard, then rested without offering testimony and renewed its motion for judgment of nonsuit at tbe close of all tbe evidence. Tbe court overruled this motion, and tbe defendant, Seaboard, duly excepted and assigned error. C. S., 567.
In Moore v. R. R., 179 N. C., at p. 639, we find: “It is tbe rule prevailing in both State and Federal procedure that on a motion for involuntary nonsuit, equivalent with us to a demurrer to tbe evidence the facts presented which make in favor of plaintiff’s claim, must be accepted as true and interpreted in tbe light most favorable to him.” Certiorari denied. Director General of Railroads v. Moore, 254 U. S., 640; Southern Railway Co. v. Gray, 241 U. S., at p. 337 (167 N. C., 433).
Tbe defendant, Seaboard, then requested tbe court in writing to instruct tbe jury that they cannot consider as evidence against defendant, Seaboard, any testimony offered by tbe defendant Southern, or by plaintiff in rebuttal. Tbe court refused to so instruct tbe jury and tbe defendant, Seaboard, excepted and assigned error. C. S., 565.
Tbe defendant, Southern, offered tbe conductor of its train at tbe time of tbe injury, who started to testify. Defendant, Seaboard, at this point moved tbe court to instruct tbe jury that none of this evidence was to be considered against tbe Seaboard. Tbe motion was overruled and tbe defendant, Seaboard, excepted and assigned error. We think tbe court was correct in overruling all tbe above motions and tbe instructions prayed for by tbe Seaboard.
[552]*552Tbe defendant, Seaboard, admitted tbat it was engaged in and plaintiff was employed in interstate commerce at tbe time of bis injury. It also admitted tbat on 10 December, 1927, tbe day plaintiff was injured, be was engaged in making repairs to Southern box car No. 35869, on tbe track connecting its line of railroad with tbat of tbe Southern.
Tbe Supreme Court of tbe United States declared tbe First Federal Employers’ Liability Act invalid. First Employers’ Liability Oases, 207 U. S., 463, 52 L. Ed., 297.
Tbe Second Federal Employers’ Act was held valid. 223 U. S., 1, 56 L. Ed., 327. “Tbe 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 its equipments or property. Tbe second section provides tbat every common carrier by railroad on lands of tbe United States other than states shall be 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. Tbe fourth section provides tbat assumption of risk shall not be a defense, where tbe violation of a safety law contributed to tbe accident. Tbe fifth section declares all contracts or devices intended to exempt tbe carrier from liability under tbe act to be void, except tbat tbe carrier may plead as a set-off any sum it paid to tbe injured employee as insurance or relief fund. Section 6 provides tbat any action under tbe act is barred after two years. Section 7 declares tbat tbe term 'common carrier,’ as used in tbe statute, shall include tbe receiver or receivers or other persons or corporations charged with tbe duty of tbe management and operation of tbe business of a common carrier.” (Italics ours.) 2 Roberts Federal Liabilities and Carriers (2d ed.) (1929), part sec. 709, p. 1329.
Tbe defects in tbe act of 1908 were covered by amendments of 1910. “In tbe enforcement of tbe provisions of tbe act of 1908, tbe courts held tbat tbe right of action given to an injured employee did not survive to bis personal representative in tbe event of bis death; tbat an action instituted in tbe state court under tbe Federal Act could be removed to tbe proper circuit court when tbe required amount was involved and a diversity of citizenship existed, and tbat when the jurisdiction of a Federal Circuit Court was based on tbe fact tbat tbe suit arose under a law of tbe United States, tbe plaintiff was compelled to sue in tbe [553]*553district of which, the defendant was an inhabitant, which, in case of a corporation, was the jurisdiction in which the charter of the defendant corporation was issued. . . . The amendatory act of 1910 resulted from the decisions of the courts in these eases. The amendment to section 6 provided that any action under the act may he brought in a circuit court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall he doing business at the time of commencing such action, and further prescribed 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 the act and brought in any state court of competent jurisdiction shall be removed to any court of' the United States. The second amendment provided that any right of action given by the act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee’s parents, and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for' the same injury.” (Italics ours.) Roberts, supra, sec. 710, pp. 1336-7. Lamb v. R. R., 179 N. C., 622; Barbee v. Davis, 187 N. C., 78, certiorari denied, 264 U. S., 588; Southwell v. R. R., 191 N. C., 153, 275 U. S., 64; Inge v. R. R., 192 N. C., 522, certiorari denied, 273 U. S., 753; Troxler v. R. R., 194 N. C., 446; Cole v. R. R., 199 N. C., 389; certiorari denied, 9 January, 1931; Pyatt v. R. R., 199 N. C., 397.
“The provision of section 2 of the Safety Appliance Act of 1910, requiring all cars of railroads whose lines are highways of interstate commerce to be equipped with Efficient hand brakes,’ unlike the provision respecting power brakes, applies to cars while engaged in switching operations and in train movements as well. The brake must at all times be ‘efficient.’ ” Roberts, sv.pra„ part sec. 719, p. 1351.
“The Safety Appliance Act, as finally amended and as supplemented by the orders of the Interstate Commerce Commission, requires the furnishing and maintenance of a considerable number of appliances. . . . Here, also, may be placed the provision permitting a carrier .to refuse to receive from connecting carriers or shippers any cars not equipped sufficiently, in accordance with the first section of the act, with such power or train brakes as will work and readily interchange with the brakes in use on its own cars, as required by the act.” (Italics ours.) Roberts, supra, sec. 716, at p. 1347.
The material part of the Safety Appliance Act applicable to this ease provides: “It shall be unlawful for any common carrier subject to the provisions of this act to haul, or permit to be hauled, or used, on its line any car subject to the provisions of this act not equipped with . . . [554]*554efficient band brakes. . . .” (Act 14 April, 1910, 36 Stat. at L., 298, cbap. 160 and part of sec. 2, 1 July, 1911.)
“The courts are agreed that tbe 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.” Roberts, supra, sec. 711, p. 1337. Section 712: “Moreover, since it is a Federal statute, decisions of the National courts construing the act take precedence over those of the State courts. For example, in determining when a carrier is guilty of negligence under the act; when an employee assumes the risk; what proof creates a dependency in death cases within the meaning of the act; whether the doctrine of res ipsa loquitur applies; whether there is any evidence tending to show liability sufficient for the case to be submitted to the jury; the measure of damages and instructions thereon, are all matters upon which decisions of the National courts control. 'As the action is under the Federal Employers’ Liability Act, rights and obligations depend upon it and applicable principles of common law as interpreted and applied in Federal courts.’ (Southern Railway Co. v. Gray, 241 U. S., 333, 60 Law Ed., 1030 (167 N. C., 433, reversed). Where the decisions of the Federal courts on a question under the act are conflicting, then a State court will follow those decisions of the National courts which appear to it to rest on the better reason.” Section 712, pp. 1338-40, Roberts, supra.
In Jamison v. Encarnacion, 281 U. S., at p. 640, Mr. Justice Butler, delivering the opinion of the Court, citing numerous authorities, said: “It is intended to stimulate carriers to greater diligence for the safety of their employees and of the persons and property of their patrons. . . . The rule that statutes in derogation of the common law are to be strictly construed does not require such an adherence to the letter as would defeat an obvious legislative purpose or lessen the scope plainly intended to be given to the measure. . . . 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. . . . 'Negligence’ is a word of broad significance, and may not readily be defined with accuracy. Courts usually refrain from attempts comprehensively to state its meaning. While liability arises when one suffers injury as the result of any breach of duty owed him by another chargeable with knowledge of the probable result of his conduct, actionable negligence is often deemed — and we need not pause to consider whether rightly — -to include other elements. [555]*555Some courts call wilful misconduct evincing intention or willingness to cause injury to another gross negligence.”
In proceedings brought under the Federal Employers’ Liability Act, rights and obligations depend upon it and applicable principles of common law, as interpreted and applied in Federal courts; and negligence is essential to recovery. New Orleans & N. E. R. R. Co. v. Harris, 247 U. S., 367.
“One of the leading cases under the Federal Employers’ Liability Act was that of Seaboard A. L. R. Co. v. Horton, 233 U. S., at p. 501, reversing this Court (162 N. C., 424). Mr. Justice Pitney said: ‘It was the intention of Congress to base the action upon negligence only, and to exclude responsibility of the carrier to its employees for defects and insufficiencies not attributable to negligence. The common-law rule is that an employer is not a guarantor of the safety of the place of work or of the machinery and appliances of the work; the extent of its duty to its employees is to see that ordinary care and prudence are exercised, to- the end that the place in which the worle is to he performed and the tools and appliances of the worle may he safe for the workmen. Hough v. Texas & P. R. Co., 100 U. S., 214; Washington & G. R. Co. v. McDade, 135 U. S., 554; Choctaw, O. & G. R. Co., v. McDade, 191 U. S., 64, 67.’ ” (Italics ours.) Southwell v. R. R., 191 N. C., at p. 157-8 (275 U. S., 64).
“The term ‘negligence’ has been defined by the National Supreme Court fo 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, sec. 811, pp. 1558-9.
In Baltimore & O. R. R. Co. v. Groeger, 266 U. S., at p. 524, 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.”
“It is the well settled rule of practice and accepted position in this jurisdiction, that, on a motion to nonsuit, the evidence which makes for the plaintiff’s claim and which tends to support her cause of action, whether offered by the plaintiff or elicited from the defendant’s wit[556]*556nesses, will be taken and considered in its most favorable light for the plaintiff, and she is ‘entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.’ ” Nash v. Royster, 189 N. C., at p. 410; Murphy v. Coach Co., ante, at p. 100.
“Direct or positive proof is not required to show that a negligent act or defect was the cause of an injury to, or death of, an employee engaged in interstate commerce. The manner and circumstances of the occurrence, and all the accompanying surroundings, as proven, may be examined in order to ascertain and determine whether or not an inference that a negligent defect caused the death- was a reasonable one.” Roberts, supra, sec. 819, at p. 1572; Cross v. Williams, 196 N. C., 216.
We have set forth at length the law in the Federal courts applicable to this action.
The defendant Seaboard, in its answer, denied negligence, and set up the plea of contributory negligence and assumption of risk. Applying the law as above stated, was the evidence in regard to negligence sufficient to be submitted to a jury? We think so. Plaintiff’s evidence was to the effect: That he was working on an “exchange track” as a ear repairman for the Seaboard and Southern, on 10 December, 1927, at Franklin, Ya., and inferentially both defendants contributed to his pay. The evidence was sufficient to be submitted to a jury that he was in the employ of both defendants. That at the time there was an agreement between the defendant railroads in regard to the “exchange track.” The answer of defendant Seaboard admitted that the “exchange track” is used in the transfer of freight cars between it and the Southern under a private contract entered into between them. The Southern on demand of plaintiff produced the contract between them relative to the “exchange track” and that it was in force and effect at the time plaintiff was injured on 10 December, 1927. The defendants are sued as joint tort-feasors. There was evidence aliunde as to said railroads being joint tort-feasors. At least the manner of introduction of the evidence to show this was in the discretion of the court below and there was evidence of cooperation.
In Wigmore on Evidence, Yol. 2 (2 ed.), at latter part of section 1079, at p. 593, we find: “The admissions of joint tort-feasors are receivable against another on the same principle and with the same limitation as those of conspirators; this is merely the same doctrine in its application to civil liability for torts.”
This contract was to the effect that each of the said railroads have “equal rights with the other in and to the use of” the “exchange track,” “so to be jointly owned and operated hereunder.” The maintenance to be paid half by each. Then the responsibility between them for [557]*557“injury” to “person,” however resulting and “arising by reason of or in connection with the joint use by the parties hereto of the said tracks as aforesaid, shall be distributed as follows,” etc. The responsibility for damages to employees by reason of concurrent negligence “shall be borne” by the parties hereto in equal contribution! We think the evidence sufficient to make the contract competent against both defendants.
Near this “exchange track” was a car inspector’s shanty, with tools which were used by plaintiff in repair work continuously for some six months prior to the injury complained of. Cars were put on the said track by both defendants to pick up in the course of business, and it was used for repairing brakes. Plaintiff repaired cars every day on this track. That is when there was anything wrong with the cars, and made repairs on the bad order cars coming in. Plaintiff had nothing to do with the movement of the cars.
The question and answer in regard to the custom and practice in regard to making light repairs to freight cars on the “exchange track” is competent. A peculiar and special custom is not binding on a person, unless known to him. First Nat. Bank v. Birkhart, 100 U. S., 686. long established customs and usages are to be judicially recognized as part of the law. Dale v. Pattison, 234 U. S., 399.
The rule is thus stated in Penland v. Ingle, 138 N. C., at p. 457: “The character and description of evidence admissible for establishing the custom is the fact of a general usage and practice prevailing in the particular trade or business, and not the opinions of witnesses as to the fairness or reasonableness of it.” Grown Co. v. Jones, 196 N. C., at p. 211.
On the morning of plaintiff’s injury, 10 December, 1927, the Seaboard placed a Southern car on the “exchange track” about five minutes before plaintiff went to repair it. When the crippled car was put in the “exchange track” by the Seaboard, the switch on the Seaboard end of the connection track was set for the main line, and there was a de-railer on this track and no car could come in, and if it did the derailer would throw it off the track. The Southern car, when put on the connecting track was not in a safe condition for movement. The brake was defective. This car was a few steps from the shanty furnished for plaintiff as repairman. This car was on an incline, wedges under the wheel were placed by plaintiff for holding the car stationary to keep it from moving of its own volition, while he was working under it. Plaintiff was working on the end of the car nearest the shanty, replacing a brake shoe; he was facing the car; he had put a brake shoe in next to the wheel on the inside; the old shoe was worn out. To apply the new one he disconnected the brake under the car, when he got the new shoe in; he stepped back underneath to reconnect the brakes. There [558]*558was a piece of casting that extended towards the end and there was a lever piece to the casting, and there were several places to tighten them. Plaintiff, while working at the end of the car in the opposite direction from which the Southern Railway train came in, could hardly see a train coming from the Southern main track over this connection track to the Seaboard, as there was a big bank on the inside of the curve. Plaintiff gives his version of the injury as follows: “I did not have any notice or warning of any kind that any car or train was coming over that connection track during that hour. I did not ever, at any time, see that train or car come in over that track from the Southern end at that hour of the day. ... I was performing my services like I had been and making the light running repairs. This was the kind of repair that I was required to make. Replacing parts is a light repair. Performing the service I was performing required me to be in the position that I was in at the time referred to. While I was engaged in the performance of my duties the Southern from the other end came in over this track and hit the car that I was working on and knocked me under it and dragged me, squeezed me and mashed me at the same time. Q. State whether or not any signal was given of the approach of that train? A. N>, I never heard a sound of it. I never heard a sound of any signal. I had no knowledge of the approach of the train until the collision occurred.”
Plaintiff, while under the car performing his duty as a repairman for both defendants, as we think the evidence warrants, the car belonged to the Southern, and in removing a worn out brake shoe the defendant Southern without warning or notice, and earlier than was customary, with unnecessary and harder force than ordinarily used, knocked the crippled car at least a car length and seriously injured plaintiff.
“Again, it is recognized in both jurisdictions that railroad companies in the operation of their freight trains are held to a high standard of care reasonably commensurate with the risks and dangers usually attendant upon the work, and although negligence may not be inferred from the ordinary jolts and jars incident to their operation, it may be imputed where there has been a 'sudden, unusual, and unnecessary stopping of such trains, likely to and which do result in serious and substantial injuries to employees or passengers thereon.’ Texas Pacific Ry. v. Behymer, 189 U. S., 469; Texas Ry. v. Archibald, 170 U. S., 665-673; Indianapolis, etc., Ry. v. Horst, 93 U. S., 291; Jones v. R. R., 176 N. C., 260; Ridge v. R. R., 167 N. C., 510; Suttle v. R. R., 150 N. C., 668; Marable v. R. R., 142 N. C., 557; Con. N. O. & T. P. Ry. v. Evans, Admr., 129 Ky., 152.” Lamb v. R. R., 179 N. C., at p. 622.
We think the exception and assignment of error in regard to this line of evidence — sudden, unusual and unnecessary coupling — under [559]*559the circumstances of this case, cannot be sustained. It was further in evidence on the part of plaintiff that he made no request for this car to be removed, and there was no custom or practice that required the use of a blue flag on the part of plaintiff. If the defendants, Seaboard or Southern, knew, or by the exercise of due care ought to have known that this was a crippled car, either one of the defendants under the safety appliance act could refuse to receive it until repair was 'made. The Seaboard knew, or in the exercise of reasonable care ought to have known, this Southern car was crippled, and when crippled or needing repair, it was the plaintiff’s duty to repair it. The Southern could not haul or permit it to be hauled in its crippled condition. The evidence being to the effect that the Seaboard jointly owned, operated and used the “exchange track” with the Southern, and it was a question of due care, in that the Seaboard did not notify the Southern that it had put one of its crippled cars on the “exchange track” that required repair. At its end it had protected the car by a derailer, knowing plaintiff, in the performance of his duty, had to go under the car to repair the worn out brake, but omitted to notify the Southern of the condition of the car and the duty of plaintiff to repair same and the hazard attendant on plaintiff of the Southern going on this “exchange track” to pick up the ear without giving plaintiff warning.
The courts invariably give a liberal construction to the Federal Employers’ Liability Act, it being humane and remedial. It is said by Mr. Justice Butler, in the Jamison case, supra: “While liability arises when one suffers injury as the result of any breach of duty owed him by another chargeable with knowledge of the probable result of his conduct, actionable negligence is often deemed — and we need not pause to consider whether rightly — to include other elements.”
The evidence in matters of this kind can be either direct or circumstantial. The authorities are to the effect that the essence of the fault may lie in omission or commission. The rule applicable may be thus stated by a general confession prayer of one of our churches: “We have left undone those things which we ought to have done; and we have done those things which we ought not to have done; and there is no health in us.”
This omission on the part of the defendant, Seaboard, from the evidence, left no physical health in plaintiff, according to his testimony. As to the spiritual — -that is another realm. See Grand Trunk W. R. Co. v. Lindsay, 233 U. S., 42; Chicago R. I. & P. R. v. Wright, 239 U. S., 548; Texas & P. R. Co. v. Rigsby, 241 U. S., 33; San Antonio & A. P. R. Co. v. Wagner, 241 U. S., 416; Spokane & C. R. R. v. Campbell, 241 U. S., 497.
In Link v. Seaboard Air Line R. Co., Vol. 156 S. E., at p. 483 (S. C.), an able opinion written by Associate Justice Stabler of the Supreme [560]*560Court, citing numerous Federal decisions :■ “It is now settled beyond controversy that tbe Federal Safety Appliance Act imposes upon tbe carrier an absolute duty to equip its cars with appliances prescribed in tbe act, and to maintain sucb appliances in a secure condition; and tbe liability for failure to do so is absolute, regardless of negligence on tbe part of tbe defendant or contributory negligence on tbe part of tbe plaintiff.”
Tbe primary cause may be tbe proximate cause of a disaster tbougb it may operate through successive instruments. Milwaukee & St.. P. R. Co. v. Kellogg, 94 U. S., 469.
Mr. Chief Justice Waite, in delivering tbe opinion of tbe Supreme Court of tbe United States in Grand Trunk Railway Company v. Cummings, 106 U. S., 700, 27 Law Ed., at p. 267, said: “If tbe negligence of tbe company contributed to, it must necessarily bave been an immediate cause of tbe accident.”
Tbe rule is tbat a man is bound to contemplate tbe natural and probable consequences of bis own act. Lazarus v. Phelps, 152 U. S., 81.
One is beld responsible for all tbe consequences of bis acts wbicb are natural and probable and ought to bave been foreseen by a reasonably prudent man. Atchison T. & S. F. R. Co. v. Calhoun, 213 U. S., 1.
To relieve tbe one responsible for tbe original wrong from liability for injury there must be tbe intervening of a new and independent cause between tbe wrong and tbe injury. Texas & P. R. Co. v. Stewart, 228, U. S., 357.
In Roberts, supra, sec. 872, at p. 1701, we find: “Tbe Employers’ Liability Act, however, differs from tbe other Federal acts regulating railroads in tbat it states, with some particularity, tbe basis of civil liability of carriers for injuries to their employees. Tbe terms of tbe act must be examined to ascertain whether it changes in any way tbe common-law rules as to proximate cause, Tbe act declares, in section 1, tbat liability shall exist if tbe injury or death, as tbe case may be, was one 'resulting in whole or in part from tbe negligence of any of tbe officers, agents or employees of sucb carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars ... or other equipment.’ In. identical language tbe same conditions of liability are restated in section 2 of tbe Liability Act. By section 3 contributory negligence is eliminated as a factor in determining liability, and by section 4 assumption of risk is likewise eliminated in those cases wherein a violation by tbe defendant carrier of any of tbe Federal safety statutes ‘contributed to tbe injury of sucb employee.’ Disregarding tbe purely negative influence upon tbe question of liability of the defense of assumption of risk, and considering only tbe positive factors, negligence of tbe employer and want of care on tbe part of tbe em[561]*561ployee, it seems clear, in tbe light of tbe provisions above abstracted, tbat tbe liability statute definitely recognizes tbe complex causal basis of tbe most injuries, and, in effect, states tbat if, among tbe several factors wbicb bave combined to produce an injury witbin tbe purview of tbe statute, there shall be found any negligent act or omission on tbe part of tbe carrier to wbicb such injury was even in part due, then liability for such injury shall fall upon the carrier. . . . (p. 1703). In tbe words of Mr. Justice Holmes: ‘We must look at tbe situation as a practical unit, rather than inquire into a purely logical priority.’ ”
With tbe facts above set forth and tbe law as stated, and taking all tbe evidence, circumstantial and direct, tbe Safety Appliance Act, and tbe entire facts and circumstances of this case, we think tbe evidence was sufficient to be submitted to tbe jury on negligence and proximate cause as to both defendants. Tbe burden is on plaintiff as to negligence and on tbe defendants as to contributory negligence and assumption of risk. Speas v. Bank, 188 N. C., 524.
“Contributory negligence under tbe Federal Employers’ Liability Act has been defined by tbe United States Supreme Court in tbe following language: ‘Contributory negligence involves tbe notion of some fault or breach of duty on tbe part of tbe employee, and since it is ordinarily bis duty to take some precaution for bis own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for bis safety as ordinarily prudent employees in similar circumstances would use.’ Seaboard Air Line Ry. Co. v. Horton, 233 U. S., 492, 58 L. Ed., 1062. In another case before tbe Supreme Court of tbe United States tbe following definition of contributory negligence was approved: ‘Contributory negligence is tbe negligent act of a plaintiff wbicb, concurring and cooperating with tbe negligent act of a defendant, is tbe proximate cause of tbe injury.’ Norfolk & W. R. Co. v. Earnest, 229 U. S., 114, 57 L. Ed., 1096. Roberts, supra, p. 218, sec. 112.” Inge v. R. R., 192 N. C., at p. 531; 273 U. S., 753.
“A servant does not assume tbe extraordinary and unusual risks of tbe employment, and be does not assume tbe risks wbicb would not bave existed if tbe employer bad fulfilled bis contractual duties. But only those risks are assumed wbicb tbe employment involves after tbe employer has done everything tbat be is bound to do for tbe purpose of securing tbe safety of bis servants, tbat is, be does not assume tbe risk of injury from tbe negligence of tbe master.” Richey, Federal Employers’ Liability Act (2 ed.), p. 179; Pyatt v. R. R., 199 N. C., at p. 404.
So far as extraordinary hazards are concerned, an interstate railway employee may assume tbat tbe employer and bis agents bave exercised proper care with respect to bis safety until notified to tbe contrary, [562]*562unless the want of care and dangers arising from it are so obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them. Chicago, R. I. & P. R. Co. v. Ward, 252 U. S., 18.
Was defendant, Seaboard, entitled to an instruction that evidence offered by its codefendant, Southern, and by plaintiff, in rebuttal could not be considered against defendant Seaboard? We think not. The evidence on the part of plaintiff was to the effect that defendants were joint tort-feasors. Was Seaboard counsel entitled to the concluding speech to the jury, having introduced no evidence? We think not.
“This question of practice has not been heretofore presented. It is the recollection of the members of this Court that the practice has been, that where one defendant introduces evidence, that gives the right to begin and conclude the argument to the State, and we adopt that view as the better rule. If there were several defendants, the rule claimed by the defendant would be inconvenient.” S. v. Robinson, 124 N. C., at p. 802.
The defendant, Seaboard, relied on Rule 3 of Rules of Practice in North Carolina Superior Courts, as follows: “In all cases, civil or criminal, when no evidence is introduced by the defendant, the right of reply and conclusion shall belong to his counsel.” This rule is not controlling as interpreted by defendant, Seaboard. This action is against joint tort-feasors.
Taking the charge as a whole, we think the court below correctly instructed the jury on the different issues relative to the Seaboard, as to the burden of proof, accurately defined negligence, contributory negligence, proximate cause, assumption of risk, and damages, and applied the law applicable to the facts. We do not think there was error in the admission and exclusion of evidence. We do not find any prejudicial or reversible error which would entitle the Seaboard Air Line Railway Company to a new trial.
As to the defense of the Southern: From the evidence we do not think the Southern can sustain its motions for judgment as in case of nonsuit at the close of plaintiff’s evidence and at the close of all the evidence, and the court below properly overruled the motions. Nor do we think there was error in the admission and exclusion of evidence, or in the charge of the court below.
In the decision of this case, we are treating this as an action for actionable negligence against joint tort-feasors. The evidence set forth what was said, and the authorities cited, in reference to the Seaboard’s contentions are also mainly applicable to the Southern. The Southern in its answer denied negligence and denied that plaintiff was an employee. It set up the plea of assumption of risk and contributory negligence, and further “plaintiff failed to display a blue flag, as is the [563]*563custom and as be was by tbe rules of bis employer required to- do, giving notice tbat be was engaged in making repairs on or about tbe said car.”
Tbe evidence as to- tbe blue flag rule and custom in tbis section at Franklin on tbe “exchange track” was disputed by plaintiff. From a careful review of tbe evidence on botb sides, and tbe charge of tbe court below, tbis was a question of fact and was left for tbe jury to determine. Tbe exceptions and assignments of error as to tbe exclusion of certain general rules and customs not confined to tbe locality of Franklin were overruled, and in tbis we can see no error. Tbe question involved was not tbe rule and custom of a general usage and practice prevailing elsewhere, tbis would not tend to give plaintiff notice. Tbe decision as to what constitutes usage and practice is heretofore cited. Then again, plaintiff contended if there was ever such a rule of tbe railroad it was a dead rule as to tbis “exchange track” and in the Franklin locality.
In Herring v. R. R., 189 N. C., at p. 290, citing numerous authorities, we find: “It is well settled law that railroad companies, in tbe conduct of their business, have a perfect right to make and promulgate reasonable rules and regulations. To be binding, they must be properly promulgated and in full force and effect — a living rule — and not revoked or abrogated by other inconsistent rules and regulations or orders. With knowledge or acquiescence of tbe master, either express or implied tbat they have been habitually violated, they are ordinarily regarded as a dead rule, waived, abrogated or revoked.”
Tbe Southern contended tbat it was not guilty of negligence and further tbat “on 10 December, 1927, Conductor McGee (of tbe Seaboard) phoned tbat Southern empty box car number 36859 was ready for movement, and tbat is all tbe information tbat I bad at tbe time concerning tbe car. Tbat was tbe regular way of notifying me, either by tbat or tbe agent. After I got tbat information I put it down on tbe record book and put it on tbe switch list to come out. I gave tbe directions to Conductor Yarborough as soon as be got in tbe office.” Yar-borough was tbe conductor of tbe train tbat ran into tbe crippled car while plaintiff was repairing it.
As heretofore shown, there was evidence by tbe contract between defendants tbat “equal rights with tbe other in and to tbe use of” tbe “exchange track,” “so to be jointly owned and operated hereunder.” Tbe maintenance to be paid half by each. Then tbe responsibility between themselves for “injury” to “person” however resulting and “arising by reason of or in connection with tbe joint use by tbe parties hereto of tbe said tracks as aforesaid, shall be distributed as follows,” etc. Tbe responsibility for damages to employees by reason of concurrent negli[564]*564gence “shall be borne by tbe parties hereto in equal contribution.” There being evidence aliunde as to both defendants being joint tort-feasors, the evidence of one defendant was evidence against the other.
Mr. Justice Holmes in Union Pac. R. Co. v. Hadley, 246 U. S., 330, before quoted, says: “We must look at the situation as a practical unit, rather than inquire into a purely logical priority.”
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. The Seaboard knew, or in the exercise of due care ought to have known, that the Southern car was crippled when it was put by it on the “exchange track” and the plaintiff would of necessity get under the car to repair it; it omitted and neglected to find out if it had been repaired and was ready to be hauled, but omitting this duty it owed plaintiff, the Seaboard agent telephoned the Southern that the empty ear was ready for movement. The evidence was to the effect that the whole set-up was equal rights of the use of the “exchange track,” between the Southern and the Seaboard — a “practical unit,” the “joint use” under the contract. The evidence was also to the effect that the negligence of each of the defendants contributed to plaintiff’s injury, and these negligent acts were the proximate causes that produced the injury, and both are liable as joint tort-feasors. The combined negligence of both produced the injury.
The Southern contended that plaintiff was employed alone by the Seaboard, but plaintiff’s testimony is to the contrary, as follows: “On 10 December, 1927,1 was employed by the Seaboard as car inspector and repairman at Franklin, Ya. I was also working for the Southern as repairman; the Seaboard paid me.”
On the record there was sufficient evidence of this fact, direct and circumstantial, at least enough to be submitted to the jury.
The Southern contended that the following charge was error: “In order, however, that a party may be liable for negligence, it is not necessary that he should have contemplated, or even been able to anticipate, the particular consequences which ensued, or the precise injury sustained by the plaintiff. It is sufficient, if by the exercise of reasonable care, the defendant might have foreseen that some injury would result from his acts or omissions, or that consequences of a gen[565]*565erally injurious nature might have been expected.” We cannot so hold.
The general rule adopted in this jurisdiction is repeatedly sustained and thus stated in Hudson v. R. R., 176 N. C., at p. 492: “In support of the first two propositions the defendant relies on the definition of proximate cause, in Ramsbottom v. R. R., 138 N. C., 41, approved in Bowers v. R. R., 144 N. C., 686, and in Chancey v. R. R., 174 N. C., 351, as £A cause that produces the result in continuous sequence, and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed/ to which we adhere, with the modification contained in Drum v. Miller, 135 N. 0., 204, and many other cases, that it is not required that the particular injury should be foreseen, and is sufficient if it could be reasonably anticipated that injury or harm might follow the wrongful act.’ ”
The charge above is taken from 21 A. & E. Ency. Law (2d ed.), p. 487, quoted in the Hudson case, supra. The Hudson case was against the Seaboard and tried under Federal Employers’ Liability Act. We think the decisions of the Federal Court strstain the charge.
In regard to the third issue: “Was the plaintiff engaged in interstate commerce at the time of his injury?” We think on the issue there was some evidence to be submitted to the jury, and the Seaboard’s admission, the competency of this kind of evidence on the record has heretofore been gone into. The evidence being to the effect that both defendants were joint tort-feasors.
The Southern contends that the Safety Appliance Act had no bearing on the case. So far as the Southern was concerned, its acts in relation to contributing to plaintiff’s injury was bottomed on other acts of negligence on its part and this aspect, if so applied to the Southern, is not prejudicial.
It may be that in the joint use of the “exchange track” by the defendants, the Southern knew, or ip. the exercise of due care ought to have known, of the crippled car, which amounted to evidence of negligence for coupling up and hauling the crippled car under the Safety Appliance Act, and it was one of the proximate causes of plaintiff’s injury.
The Federal Employer’s Liability Act, in clear language, says: “For such injury or death resulting in whole or in part, from the negligence of the carrier or its employees,” etc. We find: “In Harton v. Tel. Co., 141 N. C., 455, the following statement of the law is quoted with approval: ‘To show that other causes concurred in producing or contributing to the result complained of is no defense to an action of negligence. There is, indeed, no rule better settled in this present connection than that the defendant’s negligence, in order to render him liable, need not be the sole cause of the plaintiff’s injuries. When two efficient [566]*566proximate causes contribute to an injury, if defendant’s negligent act brought about one of sucb causes, be is liable.’ See, also, 21 A. & E. (2d ed.), 495 and note.” White v. Realty Co., 182 N. C., at p. 537-8.
We do not think the exception and assignment of error as to the X-ray photograph can be sustained. The evidence, if competent, merely corroborated Dr. Vann, and, if error, is not prejudicial. This evidence was cumulative.
Among the many cases cited by defendants, we think the case, which both of the defendants relied on, Chesapeake & Ohio Ry. Co. v. Mihas (decided by Supreme Court of U. S., 25 November, 1929), 280 U. S., 102, distinguishable from the present case, as the facts are different. In this action plaintiffs set forth many contentions as to the Southern’s negligence and it is in evidence that “It was customary for the trains to come into the connection track and stop before coupling to the ears and for a member of the Southern crew to get down on the ground and look around the car and see if it was ready for the Southern to move it.” In the Mihas case, at p. 106, we find: “The evidence, however, is that -the notification or warning was exclusively for persons not employees engaged in unloading cars. There was no custom or duty of that kind in respect to employees engaged on or about the tracks. If there was a violation of duty, therefore, on the part of the railway company, it was not of a duty owing to Mihas; and the rule is well established that it is not sufficient for a complainant to show that he has been injured by the failure of another to perform a duty or obligation unless that duty or obligation was one owing to the complainant.” This language in the Mihas case is consonant with the position here taken.
Taking the charge as a whole, we think the court below correctly instructed the jury as to the burden of proof on the different issues relative to the Southern, accurately defined negligence, contributory negligence, proximate cause, assumption of risk, and damages and applied the law applicable to the facts. We do not find any prejudicial or reversible error which would entitle the Southern to a new trial.
The questions involved in the trial of this action were mostly those of fact. The jury has found for plaintiff, in law we can find no prejudicial or reversible error that would warrant a new trial.
No error.
CoNnoe, J., concurs in result.