Claetc, C. J.
Tbe defendant does not discuss in bis brief Exceptions 3, 5, 6, 7, 11, and 12, wbicb, therefore, under Rule 34, are deemed abandoned.
Tbe plaintiff alleged that tbe death of her intestate was caused by tbe negligence of tbe defendant (1) in allowing loaded freight cars to run down its main line without any one in charge to exercise control over them; (2) in making up a train upon its main line upon a steep grade, and in allowing loaded 'freight cars to stand upon tbe grade without brakes being properly applied; (3) in violently bumping ears left upon tbe grade; (4) in equipping tbe cars wbicb broke loose with defective couplers.
There was-evidence tending to support these charges .of negligence and tbe court properly instructed tbe jury in regard thereto.
Tbe fourth assignment of error is that tbe court charged as follows: “If tbe jury find from tbe evidence that tbe wreck wbicb caused tbe death of tbe plaintiff’s intestate was solely and proximately caused by tbe negligence of defendant’s servants in not properly applying brakes on cars standing on its main line on a grade, tbe jury are instructed that tbe risk of this negligence was not assumed by tbe deceased in allowing tbe caboose in which be was riding to be pushed by tbe engine, even if tbe deceased would have escaped injury if tbe caboose bad been behind tbe engine instead of in front of it.”
In this we find no error. Tbe doctrine of assumption of risk is that an employee assumes tbe risk of accidents and injuries incident to tbe business properly operated. He does not assume tbe risk caused by tbe negligence of tbe company, in not furnishing proper appliances or in any other respect. In this case tbe jury have found that tbe death of tbe intestate was due to tbe negligence of tbe defendant in tbe partic-lars above set forth. If tbe plaintiff in any respect contributed thereto by putting tbe caboose and tank car in front of tbe engine, this was not assumption of risk, but was contributory negligence, and though it is not clearly apparent that this action contributed to tbe collision with tbe runaway cars, tbe jury have so found, and neither party has appealed [475]*475on tbat ground, and tbe jury bave apportioned tbe damages un'der tbe Federal statute. Sucb contributory negligence was tbe act of tbe intestate and not a risk of tbe business wbicb be assumed.
In R. R. v. Campbell; 241 U. S., 497, tbe Court said: “It is most earnestly insisted tbat tbe findings established tbat Campbell was not in tbe course of bis employment wben be was injured, and consequently tbat judgment could not properly be entered in bis favor upon tbe cause of action established by tbe general verdict. This invokes tbe doctrine tbat where an employee voluntarily and without necessity growing out of' bis work abandons tbe employment and steps entirely aside from the line of bis duty, be suspends tbe relation of employer and employee and puts himself in tbe attitude of a stranger or a licensee. Tbe cases cited are those where an employee intentionally has gone outside of tbe scope of bis employment, or departed from tbe place of duty. Tbe present case is not of tbat character. ... We are not aware tbat in this case it has been seriously contended tbat because an engineer violated bis orders be went outside of tbe scope of bis employment.”
Conceding tbat tbe conduct of tbe deceased was in violation of State law because tbe intestate, who was -a conductor, was running tbe train without tbe headlight displayed as required by State law, be did not thereby become a trespasser to whom tbe defendant owed no duty save to refrain from willful injury. His conduct, at most, as between him and bis employer was contributory negligence, wbicb tbe jury bave found. In tbe case just cited tbe United States Supreme Court held tbat though Campbell was guilty of a criminal offense in violation of State law, “bis right to recover against bis employer depends upon tbe acts of Congress, to wbicb all State legislation affecting tbe subject-matter must yield,” citing R. R. v. Riggsbee, 241 U. S., 33.
Tbe deceased was not a trespasser, but was an employee engaged at tbe time of bis death in the discharge of bis duty, and if guilty of negligence in tbe make-up of bis train, tbe damages bave been diminished on account of tbat negligence by tbe provision of tbe Federal Employers Liability Act tbat tbe negligence of an employee should not defeat but merely diminish tbe recovery.
There is a vital difference between contributory negligence and assumption of risk, wbicb is thus stated, 1 Labatt on Master and Servant, secs. 305 and 306, as follows: “Assumed risk is founded upon the knowledge of tbe employee, either actual or constructive, of tbe risks to^ be encountered, and bis consent to take tbe chance of injury therefrom. Contributory negligence implies misconduct, tbe doing of an imprudent act by tbe injured party, or bis dereliction in failing to take proper precaution for bis personal safety. Tbe doctrine of assumed risk is founded upon contract, while contributory negligence is solely matter of conduct. [476]*476This distinction has often been approved by the United States Supreme Court in cases under the Employers’ Liability Act. R. R. v. Horton, 233 U. S., 492; R. R. v. Wright, 235 U. S., 376.
The distinction is well stated in Richie “Federal Employers’ Liability Act” (2 Ed.), 169, as follows: “Though an employee is said to assume the risk of the consequences resulting from a violation of rules, this is properly contributory negligence. And an employee in view of severe weather conditions is guilty of contributory negligence and does not assume the risk when he fails to protect the rear of his train by proper signals, though warned by the following engineer that it was impossible to see the block signals and told to do a good job of ‘flagging.’ ”
Exceptions 8 and 9 are as follows
8. “If you answer this third issue (assumption of risk) ‘Yes,’ the plaintiff cannot recover at all.”
. 9. “In this connection I will say to you that ‘assumed risk’ is founded upon the knowledge of the employee of the hazards to be encountered and his consent to take the chance of injury therefrom.”
We find no error in these instructions, which require no discussion.
The intestate left a wife and two children, and Exceq>tions 1 and 2 are to the court submitting an issue as to damages sustained by each of the three beneficiaries for whom the action was brought.
At the time of his death the deceased was engaged in discharging the duties of a- freight conductor on one of the defendant’s freight trains engaged in interstate commerce, as is admitted in the defendant’s brief, and this action was brought under the Federal Employers’ Liability Act.
There is a radical difference between the wrongful death statute of North Carolina, Revisal, 59, and the provision of the Federal Statute under which this action is brought. Revisal, 59, provides that the action shall be brought by the personal representative of the decedent: “The amount recovered in such action is not liable to be applied as assets in the payment of debts or legacies, but shall be disposed of as provided in this chapter for the distribution of personal property in case of intestacy.” And Revisal, 60, provides: “The plaintiff in such action may recover such damages as are fair and just compensation for the pecuniary injury resulting from such death.”
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Claetc, C. J.
Tbe defendant does not discuss in bis brief Exceptions 3, 5, 6, 7, 11, and 12, wbicb, therefore, under Rule 34, are deemed abandoned.
Tbe plaintiff alleged that tbe death of her intestate was caused by tbe negligence of tbe defendant (1) in allowing loaded freight cars to run down its main line without any one in charge to exercise control over them; (2) in making up a train upon its main line upon a steep grade, and in allowing loaded 'freight cars to stand upon tbe grade without brakes being properly applied; (3) in violently bumping ears left upon tbe grade; (4) in equipping tbe cars wbicb broke loose with defective couplers.
There was-evidence tending to support these charges .of negligence and tbe court properly instructed tbe jury in regard thereto.
Tbe fourth assignment of error is that tbe court charged as follows: “If tbe jury find from tbe evidence that tbe wreck wbicb caused tbe death of tbe plaintiff’s intestate was solely and proximately caused by tbe negligence of defendant’s servants in not properly applying brakes on cars standing on its main line on a grade, tbe jury are instructed that tbe risk of this negligence was not assumed by tbe deceased in allowing tbe caboose in which be was riding to be pushed by tbe engine, even if tbe deceased would have escaped injury if tbe caboose bad been behind tbe engine instead of in front of it.”
In this we find no error. Tbe doctrine of assumption of risk is that an employee assumes tbe risk of accidents and injuries incident to tbe business properly operated. He does not assume tbe risk caused by tbe negligence of tbe company, in not furnishing proper appliances or in any other respect. In this case tbe jury have found that tbe death of tbe intestate was due to tbe negligence of tbe defendant in tbe partic-lars above set forth. If tbe plaintiff in any respect contributed thereto by putting tbe caboose and tank car in front of tbe engine, this was not assumption of risk, but was contributory negligence, and though it is not clearly apparent that this action contributed to tbe collision with tbe runaway cars, tbe jury have so found, and neither party has appealed [475]*475on tbat ground, and tbe jury bave apportioned tbe damages un'der tbe Federal statute. Sucb contributory negligence was tbe act of tbe intestate and not a risk of tbe business wbicb be assumed.
In R. R. v. Campbell; 241 U. S., 497, tbe Court said: “It is most earnestly insisted tbat tbe findings established tbat Campbell was not in tbe course of bis employment wben be was injured, and consequently tbat judgment could not properly be entered in bis favor upon tbe cause of action established by tbe general verdict. This invokes tbe doctrine tbat where an employee voluntarily and without necessity growing out of' bis work abandons tbe employment and steps entirely aside from the line of bis duty, be suspends tbe relation of employer and employee and puts himself in tbe attitude of a stranger or a licensee. Tbe cases cited are those where an employee intentionally has gone outside of tbe scope of bis employment, or departed from tbe place of duty. Tbe present case is not of tbat character. ... We are not aware tbat in this case it has been seriously contended tbat because an engineer violated bis orders be went outside of tbe scope of bis employment.”
Conceding tbat tbe conduct of tbe deceased was in violation of State law because tbe intestate, who was -a conductor, was running tbe train without tbe headlight displayed as required by State law, be did not thereby become a trespasser to whom tbe defendant owed no duty save to refrain from willful injury. His conduct, at most, as between him and bis employer was contributory negligence, wbicb tbe jury bave found. In tbe case just cited tbe United States Supreme Court held tbat though Campbell was guilty of a criminal offense in violation of State law, “bis right to recover against bis employer depends upon tbe acts of Congress, to wbicb all State legislation affecting tbe subject-matter must yield,” citing R. R. v. Riggsbee, 241 U. S., 33.
Tbe deceased was not a trespasser, but was an employee engaged at tbe time of bis death in the discharge of bis duty, and if guilty of negligence in tbe make-up of bis train, tbe damages bave been diminished on account of tbat negligence by tbe provision of tbe Federal Employers Liability Act tbat tbe negligence of an employee should not defeat but merely diminish tbe recovery.
There is a vital difference between contributory negligence and assumption of risk, wbicb is thus stated, 1 Labatt on Master and Servant, secs. 305 and 306, as follows: “Assumed risk is founded upon the knowledge of tbe employee, either actual or constructive, of tbe risks to^ be encountered, and bis consent to take tbe chance of injury therefrom. Contributory negligence implies misconduct, tbe doing of an imprudent act by tbe injured party, or bis dereliction in failing to take proper precaution for bis personal safety. Tbe doctrine of assumed risk is founded upon contract, while contributory negligence is solely matter of conduct. [476]*476This distinction has often been approved by the United States Supreme Court in cases under the Employers’ Liability Act. R. R. v. Horton, 233 U. S., 492; R. R. v. Wright, 235 U. S., 376.
The distinction is well stated in Richie “Federal Employers’ Liability Act” (2 Ed.), 169, as follows: “Though an employee is said to assume the risk of the consequences resulting from a violation of rules, this is properly contributory negligence. And an employee in view of severe weather conditions is guilty of contributory negligence and does not assume the risk when he fails to protect the rear of his train by proper signals, though warned by the following engineer that it was impossible to see the block signals and told to do a good job of ‘flagging.’ ”
Exceptions 8 and 9 are as follows
8. “If you answer this third issue (assumption of risk) ‘Yes,’ the plaintiff cannot recover at all.”
. 9. “In this connection I will say to you that ‘assumed risk’ is founded upon the knowledge of the employee of the hazards to be encountered and his consent to take the chance of injury therefrom.”
We find no error in these instructions, which require no discussion.
The intestate left a wife and two children, and Exceq>tions 1 and 2 are to the court submitting an issue as to damages sustained by each of the three beneficiaries for whom the action was brought.
At the time of his death the deceased was engaged in discharging the duties of a- freight conductor on one of the defendant’s freight trains engaged in interstate commerce, as is admitted in the defendant’s brief, and this action was brought under the Federal Employers’ Liability Act.
There is a radical difference between the wrongful death statute of North Carolina, Revisal, 59, and the provision of the Federal Statute under which this action is brought. Revisal, 59, provides that the action shall be brought by the personal representative of the decedent: “The amount recovered in such action is not liable to be applied as assets in the payment of debts or legacies, but shall be disposed of as provided in this chapter for the distribution of personal property in case of intestacy.” And Revisal, 60, provides: “The plaintiff in such action may recover such damages as are fair and just compensation for the pecuniary injury resulting from such death.”
The Federal statute provides as follows: “Every common carrier by railroad, etc., shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, 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 for such injury or death resulting in whole or in part from the negligence of any of the [477]*477officers, agents, or employees of snob carrier, or by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”
Under our State statute the damages are based upon the present worth of the net pecuniary value of the life of the deceased. Ward v. R. R., 161 N. C., 186. Under the United States statute the damages are based upon the pecuniary loss sustained by the beneficiary. R. R. v. Zachary, 232 U. S., 248.
Under the State statute the jury assesses the value of the life of the decedent in solido, which is disbursed under the statute of distributions. Under the United States statute, the jury must find as to each plaintiff what pecuniary benefit each plaintiff had reason to expect from the continued life of the deceased, and the recovery must be limited to compensation of those relatives in the proper class who are shown to have sustained such pecuniary loss. R. R. v. Vreeland, 227 U. S., 59; R. R. v. Didricksen, ibid., 145; R. R. v. McGinnis, 228 U. S., 173; R. R. v. Zachary, 232 U. S., 248. In the latter case the Court said: “The statutory action of an administrator is not for the equal benefit of each of the surviving relatives for whose benefit the suit is brought. Though the judgment may be for a gross amount, the interest- of each beneficiary must be measured by his or her individual pecuniary loss. That apportionment is for the jury to return. This of course excludes any recovery in behalf of such as show no pecuniary loss.”
This was not overruled in R. R. v. White, 238 U. S., 507. In the latter case the defendant did not ask to have the damages apportioned by the jury, but moved for arrest of judgment after the verdict was rendered because the verdict was a general one. The Court merely held that the verdict was not void because not apportioned and that the apportionment was no concern to the defendant, who can not be heard if it did not except on the trial. None the less the plaintiff has a right, as in this case, to have the jury apportion the recoveries.
. The defendant in this case strenuously insists that the matter has been settled otherwise in this State by the decision In re Stone, 173 N. C., 208. In that case the decision was correct upon the facts, for it was not an action brought under the Federal Employers’ Liability Act, but a proceeding to distribute a fund in the hands of the administratrix! and this Court held that it should be distributed according to our stat-i ute of distributions, and the writ of error to the United States Supreme Court was dismissed for want of jurisdiction. The opinion in that case, quoting in conclusion from R. R. v. White, supra, said: “The amount, allotted to each party entitled is no concern to the defendant, unless such allotment increased the amount of the total recovery.” The Stone case was also correct in construing the Federal statute as to the three classes [478]*478of beneficiaries and bolding as follows: “The Federal statute, therefore, creates three classes, which are separate and distinct from the other. If there is any member of the first class, but one or more of the second, then the third class will be excluded. If any member of the last •class does not come under the provision ‘dependent upon such employee’ (Dooley v. R. R., 163 N. C., 454), then such person is excluded from that class, and if such exclusion should apply to the whole of that class, then there can be no recovery. If the recovery by ‘next of kin’_ should be enlarged by the wrongful inclusion of one not ‘dependent,’ that question must be raised at the trial by proper exceptions. R. R. v. Zachary, 332 U. S., 248.”
The opinion In re Stone, however, proceeded to say, as contended by the defendant in this case, that “the Federal statute makes no provision for the apportionment of the funds, and therefore the State statute controls. The source of recovery is the United States statute, and that indicates only the different classes of the beneficiaries and the manner of ascertaining the amount due. But when the amount and class are ascertained, the sum paid or recovered must be distributed in that class according to the requirement of the State law.” It is true this was not necessary to the decision in that case, but we must frankly say, after further advisement and fuller consideration, that this conclusion cannot be sustained. It is at variance with the tenor of the Federal statute, which is based upon the loss of each beneficiary in the class entitled as the measure of the recovery, and this can only be ascertained, logically, by a finding of the jury as to the amount of loss sustained by each of the beneficiaries entitled. It may well be that one or more of the children or one or more of the next of kin may have received very slight or no pecuniary loss, while the loss to others who were “dependent upon the deceased” was much gre'ater.
In Collins v. R. R., 148 N. Y. Supp., 781, the Court quotes from R. R. v. McGinnis, 228 U. S., 173, as follows: “The statutory action of an administrator is not for the equal benefit of each of the surviving relatives for whose benefit the suit is brought. Though the judgment may be for a gross amount, the interest of each beneficiary must be measured by his or her individual pecuniary loss. That apportionment is for the jury to return. This will, of course, exclude any recovery in behalf of such as show no pecuniary loss,” and adds that the jury having returned a verdict in solido without apportioning the amount among those dependent upon the plaintiff’s intestate, the judgment was reversed.
In Kenney v. R. R., 167 N. C., 14, this Court held that the words '“next of kin” must be construed in each State by the statutory meaning of those words in that State, and on writ of error, 240 U. S., 489, this was upheld; but this does not militate against the apportionment re[479]*479quired by the statute as to each member of the class entitled to recover.
This matter has been so fully considered by the United States Supreme Oourt that we do not deem it necessary to elaborate it, or to say more than that our contrary ruling in the obiter dictum, in the Stone case is overruled.
Exception 10 is as to the following charge: “As to the children, the damages, would be such an amount as the deceased would reasonably be expected, under all the facts and circumstances in'the case, to have contributed towards the maintenance and education of the two children; the loss sustained is peculiarly their own, including a recovery for the loss of that care, counsel, training and education which the child might, under the evidence, have reasonably received from the parent, and which could only be supplied by the services of another for compensation.”
And Exception 13 is that the Oourt charged: “The award for each child will embrace compensation for the loss of that care, counsel, training, and education which it might, under the evidence, have reasonably received from its father, and which can only be supplied by the services of another for compensation. The jury will note in this instruction that the element of damage with regard to the care, counsel, training, and education of the children is an element which applies to them but which does not apply to the wife.”
We find no error in these instructions. The defendant objects that the jury were not restricted to the minority of the children as regard maintenance. But we think that it is a fair and reasonable intendment from the context and that the jury could not have been misled. The instruction was as to the loss of care, counsel, training, and education, to be reasonably expected from the father, and maintenance naturally would be implied only to the same extent.
Exceptions 14 and 15 are merely formal, and the other exceptions not discussed above were, as already stated, abandoned by not being brought forward in defendant’s brief.
No error.