¶1 Defendants rely chiefly upon their motion for judgment as of nonsuit, and they contend that the case at bar falls squarely under the decision of this Court in Gilliam v. R. R., 179 N. C.,. 508, where we had occasion to consider another accident which occurred on this same “shuttle train.” But we think the present facts are somewhat different and sufficient to sustain the verdict of the jury. It is true the plaintiff’s own witnesses apparently contradicted each other in their testimony, but this would not warrant the Court in granting the defendants’ motion for nonsuit. "Where the evidence is conflicting, with respect to a material matter, it must be submitted to the jury. Shell v. Roseman, 155 N. C., 90; Ward v. Mfg. Co., 123 N. C., 252.
¶2 This action was instituted against Walker D. Hines, Director General, and the Atlantic Coast Line Railroad Company. The judgment is against both of the defendants. Since this case was tried, the United States Supreme Court, in R. R. v. Ault (opinion filed 1 July, 1921), has held that in such actions arising under Federal control, the same may not be maintained against the railroad company. Hence, the judgment against the Atlantic Coast Line Railroad Company will be reversed and the action dismissed as to said company. The plaintiff consenting to this modification, the judgment against the Director General will be upheld under authority of Kimbrough v. R. R., ante, 234, where the reasons for this position are fully stated in an opinion by Clark, C. J., and, therefore, we will not repeat them here. See, also, Wyne v. R. R., post, 253.
¶3 The trial and judgment on the verdict against the Director General are
¶4 Modified and affirmed.