#### MATILDA D. ARROWOOD and J. J. DAVIS, Administrators of Albert Arrowood, v. SOUTH CAROLINA AND GEORGIA EXTENSION RAILWAY CO.

(Decided May 22, 1900.)

Negligence — Contributory Negligence — Defective Lookout— Proximate Cause of Death — Map, Made Ex Parte, How far Admissible — Experiments with Headlights.

1. Lying down on a railroad track is per se contributory negligence.

2. The failure to keep a proper lookout, according to the circumstances of the ease, is negligence — more care required on a frequented track than on a clear one — more diligence cn a winding road than on a straight one. If the engineer and fireman are insufficient, more help must be employed for this indispensable duty.

3. A map made without order of court may be admitted merely to explain the witness’s testimony and as a part thereof. The result of experiments made with headlights, at the spot, are competent to go to the jury for what it is worth.

Civil Action for the alleged killing by negligence of plaintiffs’ intestate, Gilbert Arrowood, tried before Shaw, J., at Special January Term, 1900, of McDowell Superior Court, upon the usual issues — negligence—contributory negligence, and last chance; all three of which the jury found in the *630affirmative, and assessed tbe plaintiffs’ damages at $1,500. Judgment for plaintiffs according to verdict. Appeal by defendant.

Tbe exceptions taken by defendant axe considered in tbe opinion.

Messrs. Locke Craig, and P. J. Sinclair, for appellant.

Messrs. D. W. Robinson, E. J. Justice, and J. T. Perkins, for appellees.

Clark, J.

Tbe first exception for permitting tbe use of tbe map can not be sustained as it was admitted merely to explain tbe witness’ testimony, and as a part thereof. Riddle v. Germanton, 117 N. C., 387, and cases cited; Tankard v. Railroad, Ibid, 558.

Tbe Court instructed tbe jury that if they found from tbe evidence “that this was a public passway, as heretofore defined, and that tbe engineer, by reason of tbe curve in tbe road and tbe obstruction of tbe smoke-stack, could not keep a proper lookout for persons on tbe track, and that tbe fireman could bave done so; tben it would have been tbe duty of tbe defendant to bave bad this fireman to bave assisted this engineer in keeping this outlook.” And also: “Wbat might be ordinary care under certain circumstances might not be ordinary care under other’ circumstances; and if you should find from tbe evidence, under the rules to be hereinafter given you, that tbe public were in tbe habit of using tbe railroad track at tbe point of tbe accident as a passway, tben a greater degree of care would be required of tbe defendant in running its trains at this point than tbe defendant would 'have exercised in running its trains along tbe track where the public bad-not been habitually permitted to. use tbe track as a pass-way.”. “All that tbe defendant is required to do is to. use *631ordinary care under the circumstances oí tbe case, and in determining whether the defendant was negligent, as alleged in the complaint, you must first ascertain what duty, if any, it owed the plaintiff’s intestate at the time of the alleged killing and if it owed a duty, whether or not it failed to perform that duty.”

The above paragraphs of the charge are excepted to, but without cause. There was ample evidence to go to the jury tending to> show that the track was used habitually as a pass-way, and in telling the jury that if they found such to be the fact the defendant should observe a greater degree of care than in running its trains where the track was not so used, the Court was stating almost a truism. In moving trains through a crowded city, it must be at a lower speed, with much greater control over the engine and keener lookout kept in front, than in going along a straight track in an open and almost uninhabited country, and the Court properly told the jury that the amount of care depended upon the circumstances of the case. So, on a straight track, the careful lookout of the engineer would ordinarily be sufficient, but on a winding mountain track, turning first to the right then to the left, if the engineer could not see the track when the engine turned to the left, then it was his duty to have the fireman to look out forward on that side. The duty of keep-""”-ing the lookout is on the defendant. If it can keep a proper lookout by means of the engineer alone, well and good. If by any reason a proper lookout can not be kept without the aid of the fireman, he should also be used. If by reason of their duties, either the fireman or the engineer, or both, are so hindered that a proper lookout can not be kept, then it is the duty of the defendant, at such places on its road, to- have a third man employed for that indispensable duty. In Pickett v. Railroad, 117 N. C., 634; Lloyd v. Railroad, 118 *632 N. C., 1012, and a long line of similar eases, it is beld that it is the duty of the defendant to keep a proper lookout. It is not beld anywhere tbat sucb lookout as tbe engineer may be incidentally able to- give, will relieve tbe company, if tbat lookout is not a proper lookout.

Tbe other exceptions do not require consideration. Similar exceptions have heretofore been before the Court, and beld to be without merit. Tbe -evidence of three witnesses who went to tbe place where the intestate was struck, and on a. dark night (such as that on which tbe intestate was killed), made observations of the light cast by one of defendant’s engines with an oil headlight, such as all the engines of defendant used, was competent to go to the- jury for what it was worth. It was not necessary on such matters of fact,' depending on ordinary powers of observation requiring no special training, that the witnesses should bei experts. It was also competent for* the jury to consider the testimony of the engineer that he could. have seen the intestate, and did not see him when it was his duty to have- seen him. Powell v. Railroad. 125 N. C., 370.

The defendant’s prayer was given in substance in the charge- with the exception that the Court told the jury that if the intestate was killed on a point of the road where the public were in the habit of using it with the knowledge and implied consent of the defendant, and on a curve which kept the engineer from seeing the track, but the fireman could have done so in time to- have stopped the train and prevented the injury without endangering the persons on the train, it was the duty of the fireman to- have kept the outlook. In this modification there was no error as already stated. If the track was habitually used by the public to the knowledge of the company, of which there was evidence, it would not have decreased the latter’s duty to look out if such use had not *633been so long continued and acquiesced in as to amount to implied consent. Requiring implied consent to tbe use of the track, as well as knowledge of its habitual use by the public as a precedent condition to the defendant’s using the lookout,was an error against the plaintiff. Consent, express or implied, would have lessened the liability of the deceased for contributory negligence, but the jury having found that issue against the plaintiff, the sole question is.(the third issue), whether “Notwithstanding the negligence of the plaintiffs’ intestate, could the defendant by the exercise of ordinary care, have avoided the killing of the intestate.”

The railroad track is for the exclusive use of the company. It pays for its construction, and has from the State, by virtue of a grant- under the State’s right of eminent domain,power to condemn from private owners the right-of-way “for public uses,” but that use is to be exclusive in itself, subject of course to public regulation and control in its use. Others have no right to use the track, and when they do so they are guilty of contributory negligence, unless they have permission, express or implied, from the company. The discussion whether the intestate was a licensee or a trespasser has no bearing upon this appeal by the defendant, for the jury found on the second issue that the intestate, whether he was licensee or trespasser, was wrongfully on the track, i. e., .that he was guilty of contributory .negligence. If he was a licensee, nay, more, if he had had an express permit to walk on the track, he certainly had no permission to lie down on the track, and the jury found that issue against the plaintiff.

But, notwithstanding a human being is down helpless on the track, and is there in his own wrong, the railroad company acquires no right to run over and kill him for his foolhardiness if by ordinary care it can be avoided. Even a cow or a hog does not forfeit its life under such circumstances, if *634the company’s servants can by ordinary care avoid killing. If, on this occasion, by reasonable, ordinary care, in keeping a lookout on both sides of a winding mountain road, whose curves would sometimes obscure the track from the sight of the engineer on the right hand side of the engine, and did so obscure it at the point where the deceased was killed, and such defective lookout caused the killing which might otherwise have been prevented, then, notwithstanding the negligence of the deceased, the defective lookout kept by the defendant was the proximate cause of the death. Such the jury found to be the fact in this case.

Affirmed.