a child under the age of 16 years to operate a metal or paper cutting machine, an insurance carrier was not relieved from liability because of a provision contained in its policy providing that only those employees should be covered who were legally employed. Its reasoning is that, because section 2 of the Workmen's Compensation Law is general and provides that it shall be applicable to "employees engaged in the following hazardous employments,” and because nothing excluding minors from the benefit of the law is to be found in it or in the Labor Law, no legal deduction can be made that there is such exclusion from the remedies provided for by that act on the ground of any public policy, either declared or implied. The decision is clear to the effect that no defense to the payment of compensation by the employer or carrier to the employee is made out on the ground that the claimant was employed in violation of this provision of the Labor Law. This holding by the Appellate_Division, Third Department, is in direct conflict with the Court of Errors and Appeals of New Jersey (Hetzel v. Wasson Piston Ring Co., 89 N. J. Law, 203, 98 Atl. 306), the Supreme Court of Wisconsin (Stetz v. F. Mayer Boot & Shoe Co., 163 Wis. 151, 156 N. W. 971), and the Supreme Court of Minnesota (Pettee v. Noyes, 133 Minn. 109, 157 N. W. 995), in the decisions of each of which states the logical rule has been applied that employments described in Workmen's Compensation Acts, for injury in which an exclusive remedy is given by such acts, must be deemed to apply solely to employments lawfully made, and that where the employment is violative of prohibitory legislative enactments such remedy is not within the contemplation of the legislative direction. In New Jersey the Compensation Act is quite similar to ours, excepting that it is elective as to both employer and employee, and under it the rule has been declared that the absolute prohibition of employment of a child before he reaches the age of 14 years has the effect of relieving the claimant from the necessity of proceeding for his remedy under the Workmen's Compensation Act, and that the common-law liability for injuries done the child while in such unlawful employment survives. In Wisconsin the ruling is not closely applicable, because in that state's Workmen's Compensation Law there is a provision to the effect that the act shall apply to all contracts for employment, including contracts of employment of minors who are legally permitted to work under the laws of this state. In Minnesota the act has a similar provision, and the statute is made applicable only to minors "who are legally permitted to work under the laws of this state." We have, therefore, to conclude between the doctrine announced by the highest court of New Jersey and the ruling given in this court of the Appellate Division of another department, and I do not think that the slight distinction between our law and that of New Jersey provides the answer to the disparity of reasoning. Here the design, pursuant to the provisions of the constitutional amendment permitting the Legislature to enact this law, was to avert the consequence of unremedied injury suffered in the course of employment regardless of the contributory negligence or assumption of risk of the claimant It was deemed proper that both employer and employee should be rid of the burden of risk in the hazardous industries, and that the losses in money compensation should be borne by the patrons of the business as a cost of carrying on the enterprise. This policy is patent in every state and federal enactment on this subject of legislation. There is then no difference of policy actuating the difference in rulings. I apprehend that the decision in our jurisdiction is based upon an erroneous premise from which flows the apparently erroneous conclusion that minors prohibited from engaging in employment are included within the provisions of the Workmen's Compensation Act and that therein lies their exclusive remedy. In the Ide Case there are used these words: "Nothing excluding minors from the benefit of the law is to be found in it or in the Labor Law, nor can it be said to exist upon the ground of public policy." Of course minors are not excluded from the benefits of the law. Minors are specifically mentioned in one part of it as being considered sui juris for certain purposes to be attained under it. Workmen's Compensation Law, section 2, sentence before last paragraph. All the minors over 16 years of age operating elevators would not be excluded from its provisions, but, on the contrary, must be deemed to be included from the general term used. The reasoning in the sentence quoted of the court's opinion relied on by defendant seems to regard the omission of an exclusion of minors who are prohibited from working at certain hazardous occupations from the provisions of the act as an indication that they were to be included within the term "employees." This, with due respect, seems to beg the question. Whatever the ordinary canons of construction impose for the definition of general words, it is now to be decided whether a class prohibited by law from being employed may be deemed as one contemplated as sure to be found in work violative of the prohibition. It seems incredible that the legislative intent can be construed to have gone to the extent of providing for compensation for a class of employees which its solemn commandment had forever forbidden to be engaged in such occupations. It is reasoned in the cited cases as though it was assumed that this child protective legislation would be ignored, and the Legislature knew that it would be flouted. I am not able to follow this logic, but with the opinion of the Appellate Division, Third Deparment, opposed to these views, before which court come all the primary appeals under the Workmen's Compensation Law from determination ruled upon by the Industrial Commission, which, in the interest of stability and certainty of the law, is not to be lightly disregarded, even though the stare decisis rule is not applicable, I feel bound against making a ruling on judgment independent of the views there announced. It is almost manifest that it will be found that the policy of conserving child life from injury or destruction does not ask that infants protected by this legislation enacted in the Labor Law be confined to the exclusive remedy of the Compensation Act. The evils attendant upon the pleas of contributory negligence, assumption of risk, and the construction of the fellow-servant doctrine are not to be feared in an infant's action, or that of his representative upon an allegation of unlawful employment in a hazardous occupation. Marino v. Lehmaier, 173 N. Y. 530, 66 N. E. 572, 61 L. R. A. 811, and Koester v. Rochester Candy Works, 194 N. Y. 92, 87 N. E. 77, 19 L. R. A. (N. S.) 783, point out that as matter of law these defenses do not lie against the declared policy of prohibition of child labor in certain avocations. It would seem surely to be a better policy to negative the right of compensation in employments prohibited as unlawful as a salutary restraint both on parents tending toward their fulfillment of their obligation to keep their children from the proscribed work and on employers as exposing them to the risk of common-law damages for injuries, if sustained by such infants, as to whose engagements law has interposed a barrier. Notwithstanding individual judgment, that remedy is not to be found within the Compensation Act, and an action at common law still survives in these circumstances, I will follow the decision of the Third Department and overrule plaintiff's demurrer to the defense, with motion costs. Defendant's motion to overrule granted Plaintiff's motion to sustain demurrer is denied. Ordered accordingly. SUPREME COURT OF NORTH CAROLINA. JONES V. NORFOLK SOUTHERN R. CO. (No. 257.)* 2. MASTER AND SERVANT-FELLOW-SERVANT RULE. At common law, or under the later decisions of the common-law courts, negligence of a fellow servant was classed among the risks assumed by an employee engaged in a common service. (For other cases, see Master and Servant, Dec. Dig. § 216[1].) 3. MASTER AND SERVANT-"FELLOW SERVANTS"-MAKING FLYING SWITCH. Railroad's locomotive engineer and its brakeman, while engaged in making flying switch with locomotive and car were "fellow servants" within common-law rule as to assumption of risk of negligence of fellow servant. (For other cases, see Master and Servant, Dec. Dig. § 198[8].) (For other definitions, see Words and Phrases, First and Second Series, Fellow Servant.) 4. COMMERCE-FEDERAL EMPLOYERS' LIABILITY ACT-CONTROL OF LIABILITY. In railroad servant's action for injuries under federal Employers' Liability Act, the statute affords controlling rule of liability, and question of assumption of risk of negligence of fellow servant must be determined in accord with provisions of federal statutes and federal decisions construing them. (For other cases, see Commerce, Dec. Dig. § 8[6].) 5. MASTER AND SERVANT-FELLOW SERVANT-ASSUMPTION OF RISK. Doctrine of assumption of risk of negligence of fellow servant is based on knowledge, or on fair and reasonable opportunity to know, and usually such knowledge and opportunity must come in time to be of use. (For other cases, see Master and Servant, Dec. Dig. § 217[29].) 6. MASTER AND SERVANT-ASSUMPTION OF RISK-FEDERAL EMPLOYERS' LIABILITY ACT Under federal Employers' Liability Act, § 1, brakeman making flying switch, and thrown from car and run over on account of locomotive engineer's sudden, unusual, and unnecessary manner of stopping engine, did not assume risk of such negligence of his fellow servant, having no opportunity to know of danger. (For other cases, see Master and Servant, Dec. Dig. § 217[5].) 7. NEGLIGENCE-COMPARATIVE NEGLIGENCE-INSTRUC TION. Where court charged that damages to plaintiff brakeman from defendant railroad must be proportionately reduced if plaintiff was negli* Decision_rendered, Oct. 23, 1918. 97 S. E. 48. gent, his use of the term "full measure of damages," to express correctly rule of adjustment if plaintiff was not negligent, was proper. (For other cases, see Negligence, Dec. Dig. § 141[12].) Appeal from Superior Court, Wake County; Ferguson, Judge. Action by A. V. Jones against the Norfolk Southern Railroad Company. From judgment for plaintiff, defendant appeals. No error. The action is to recover damages for physical injuries to plaintiff caused by the alleged negligence of defendant company, and the complaint, giving in each the true place and circumstances of the occurrence, states the grievances in two causes of action, in one of which there is direct averment that plaintiff was an employee on defendant's train, engaged at the time as a common carrier of interstate commerce, and a second cause of action without such averment. Defendant having admitted in the answer that the train at the time was engaged in interstate commerce, the action was tried as one under the federal Employers' Liability Act, and on issues presenting the defenses and pleas recognized by that statute. On the hearing, the evidence on the part of plaintiff tended to show that, on the occasion in question, he was an employee on defendant's freight train running from Raleigh, N. C., towards Norfolk, Va., and at or near a station called Simms he was upon a box car, pursuant to orders, in the line of his duty and employment, engaged in making a flying or running switch, by means of which the car was to be placed on the siding at Simms; that the usual method is for the engine to draw the car to a speed required to run the same on the siding of its own momentum; the engine then slows down sufficiently to take up the slack and allow the coupling to be removed, when the engine speeds down the main line allowing the car to run on the side track as designed; that the proper way to do this is to slow down gradually, and there is a special appliance on the engine, called the "Johnson bar," to enable him to do this without any threatening or unusual jolt; that the engine driving the car having reached a speed 10 or 12 miles an hour, "going very fast," by plaintiff's own testimony, the engineer, by the application of direct air or the unusual manner of applying it, brought his engine to a sudden, unusual, and unnecessary stop; that plaintiff, doing what he could to hold himself in place, was thereby thrown upon the track in front of the car and run over, causing the loss of one leg, seriously wounding another, and painfully lacerating other portions of his person. A rule offered by defendants, permitting flying switches to be made, contained, among other things, the admonition: "That great care must be exercised at all times in making any flying switch or in kicking cars." In addition to the rule permitting these flying switches to be made, there was testimony on the part of defendant tending to show that this flying switch was made in the usual way without causing any sudden or unusual jolt, and that plaintiff fell from the car by reason of his own inattention and negligence. On issues submitted, the jury rendered the following verdict: "Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes. "(2) Did the plaintiff by his own negligence contribute to the occurrence of his injuries as alleged in the answer? Answer: No. "(3) Did the plaintiff assume the risk of the occurrence of the injuries which he sustained and here complained of? Answer: No.. "(4) What damages, if any, is the plaintiff entitled to recover of the defendant? Answer: Seventeen thousand five hundred dollars ($17,500)." Judgment on the verdict, and defendant excepted and appealed. R. N. Simms, of Raleigh, for appellant. HOKE, J. [1] It was chiefly objected to the validity of the trial that his honor refused to hold as a matter of law that plaintiff was barred of recovery by reason of assumption of risk; this on the ground, first, that the making of a flying switch was one of the ordinary incidents of plaintiff's employment; second, that the engineer engaged in making such switch was a fellow servant and, on the facts in evidence, his negligence, if it should be established, should be properly classed as one of the assumed risks in the course of plaintiff's employment. But, in our opinion, neither position can be sustained. The first is closed to defendant by reason of the finding of the jury on the first issue. It is the accepted principle in our procedure that a verdict must be interpreted and allowed significance by proper reference to the testimony and the charge of the court. Reynolds v. Express Co., 172 N. C. 487, 90 S. E. 510, Ann. Cas. 1918C, 1071; Donnell v. Greensboro, 164 N. C. 330, 80 S. E. 377. In the present case, while the complaint seems to specify the "making of the flying switch as a separate act of negligence, a perusal of the evidence and the charge of the court will disclose that the making of the switch itself was not allowed as a ground of liability, but that the considerations and decisions of the first issue were restricted to the question whether there was negligence in making such switch by bringing the engine to an unnecessary and unusual stop"; the language of his honor's direct charge on the first issue being as follows: "If you should find from the evidence and by the greater weight of the evidence that the engineer suddenly, by use of air brake, or any other appliance, suddenly and unnecessarily checked the speed of the engine in such a manner as to cause an unusual and unnecessary jar sufficient to throw the plaintiff from the car, and he was thrown by reason of that from the car and run over and hurt, you will answer the first issue, 'Yes,' but if you fail to so find you will answer it, 'No.'" [2-4] The verdict on the first issue, therefore, having eliminated "the making of a flying switch as a ground of liability," that fact as a separate circumstance is "withdrawn from consideration also on the question of assumption of risk." And this, too, is the final answer to the second ground of defendant's objection, though, as argued, this presents other questions that it may be well to consider. At common law or under the later decision of the common-law courts, the negligence of a fellow servant was classed among the risks assumed by an employee engaged in a common service, and, on the facts of this record, the engineer and brakeman are undoubtedly fellow servants within the meaning of the principle. New England R. R. v. Conroy, 175 U. S. 323, 20 Sup. Ct. 85, 44 L. Ed. 181; B. & O. Ry. v. Baugh, 149 U. S. 369, 13 Šup. Ct. 914, 37 L. Ed. 772. This cause, however, coming under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), it is fully established that the statute itself affords the exclusive and controlling rule of liability, and the question presented must be determined in accordance with its provisions and applicable and authoritative federal decisions construing them. Belch v. Seaboard Air Line, 96 S. E. 640, at the present term, citing Erie R. R. v. Winfield, 244 U. S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662; N. Y. Central v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139; St. Louis, etc., R. R. v. Hesterly, Adm'r, 228 U. S. 702, 33 Sup. Ct. 703, 57 L. Ed. 1031; Second Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44. [5, 6] While the law in question clearly recognizes assumption of risk as a defense in certain instances, under section 4 (section 8660) such a position is absolutely inhibited in cases where the violation of a federal Vol. II-Comp. 5. |