#### BESSENT v. SOUTHERN RAILWAY CO.

(Filed June 11, 1903.)

NEGLIGENCE — Contributory Negligence — Railroads—Trespasser.

The plaintiffs intestate was walking along a railroad track with a companion in the day time, which was commonly used by the people in that vicinity as a footpath, was warned of a train approaching from the rear, which she could have seen and heard, and answered the warning indicating that she knew of its approach. The whistle was blown and the bell rung, hut intestate failed to leave the track, whereupon she was struck and killed. Upon which testimony a nonsuit was properly granted.

Clabk, C. J., and Douglas, J., dissenting.

ActxoN by J. C. Bessent, as administrator of Eanny Scales, against tbe Southern Railway Company, heard by Judge Walter H. Neal, at March Term, 1903, of the Superior Court of EoRsyth County.

This action was brought by the plaintiff to recover damages for the alleged negligent killing of the intestate by the defendant. The plaintiff’s intestate, Eanny Scales, was walking along the track of defendant near Winston in the direction of Wilkesboro, accompanied by Will Smith, when an engine pushing four box: cars approached from the south. There was evidence tending to show that the whistle was sounded twice and that the intestate could have heard it and could also have heard the noise of the train, and that she could easily have seen the train in time to have stepped from the track to a place of safety. There was nothing to prevent her doing so. Persons farther away from the train than the. intestate was at the time she was killed both saw and heard it. William Hairston, a witness for the plaintiff, testified: The train coming up through the cut made a great deal of noise and persons could easily have looked back and seen the train if they had eyes and could have gotten off if they wanted to. Will Smith had the intestate by the hand or *935wrist; sbe was on tbe sills of tbe tract and be was waiting on tbe ground beside tbe sills. They seemed to be waiting along laughing and talking. Sbe could have stepped off on either side of tbe tract. If she bad ordinary bearing sbe was bound to have beard tbe train. Tbe plaintiff himself testified: When tbe girl was tilled sbe could easily have gotten from tbe tract, more easily to tbe left than to tbe right. Any person could easily have gotten off tbe tract; all they bad to do was to step off; they could easily have stepped off and been out of danger; between tbe two tracts it is level and sbe could easily have stepped off. Tbe evidence also tended to show that tbe intestate was tilled near tbe end of a cut which was directly under tbe place where Main street was when it ran over tbe embankment and before tbe embankment was cut down for a railroad tract; but tbe cut bad not been used as a street, though it bad been used by pedestrians “as a common foot path” when going from one of tbe factories to tbe northwest portion of Winston. In reference to this matter tbe plaintiff testified: This cut does not pretend to be a street; part of Main street used to be where this cut is, and they have narrowed that street very much, and on tbe west side of tbe cut, up on tbe embankment, there is still a driveway; this street is thirty-five feet higher than tbe track; people walk along the track as they do everywhere.

Tbe ordinance of tbe city of Winston provides that it shall be unlawful for trains and locomotives to run at a greater speed than eight miles an hour, and tbe intestate was killed within tbe city limits, tbe train was running twenty miles an hour when tbe intestate was killed and it was in the day time. There were two men on tbe end of tbe front or leading box car, who waved their bandS and hallooed to tbe intestate and her companion as tbe train approached them. A witness, Ida Douglas, testified: That sbe was on tbe track and beard tbe train blow at the south end of tbe cut; sbe ran to tbe *936switch and got off; as sbe passed tbe intestate sbe said to her, “Eanny, tbe train is coming,” to which the intestate replied, “All right, honey.” The intestate remained on the track and was killed by the train. At the close of the plaintiff’s testimony, the defendant moved for judgment of non-suit under the statute. The court intimated that it would charge adversely to the plaintiff, whereupon he submitted to a non-suit and appealed. The plaintiff assigns as error:

1. That the court refused to submit the plaintiff’s third issue as to the last clear chance of the defendant to avoid the injury, which issue, it is stated in the record, was submitted in apt time.

2. That the court allowed the defendant’s motion to non-suit the plaintiff.

3. That the court directed the jury to answer the second issue “Yes” and the third issue “Nothing.”

J. S. Grogan, for the plaintiff.

Glenn, Manly & Hendren, for the defendant.

Walker, J.,

after stating the case. If the court dismissed this action upon the defendant’s motion, or if, in deference to an adverse intimation of the court, the plaintiff submitted to a judgment of non-suit and appealed, this court must consider all the evidence for the plaintiff “as true, and regard it in the most favorable light” for him, as stated by this court in Collins v. Swanson, 121 N. C., 67. The rule that where there is a non-suit in submission to an intimation of the court against the plaintiff’s right to recover, the evidence introduced by the plaintiff must be taken as true for the purpose of deciding whether, in any reasonable view of it he can recover, has frequently received the sanction of this court. Springs v. Schenck, 99 N. C., 551; 6 Am. St. Rep., 552; Gibbs v. Lyon, 95 N. C., 146; Abernethy v. Stowe, 92 N. C., 217. All of the witnesses in this case were introduced by *937the plaintiff, and be represented, therefore, that they were creditable. The law will not permit him to impeach their credibility, although he could have shown, if he had been disposed and able to do so, that the facts were different from those to which they testified. It is stated in the case that the plaintiff submitted to a non-suit because the court intimated that it would so charge the jury that they would have to answer the first issue “Yes,” the second issue “Yes” and the third issue “Nothing,” but it does not clearly appear what particular form the charge of the court would have taken, if it had been delivered to the jury. We can not infer from the statement in the record that the court intended to direct a verdict peremptorily for the defendant, and the only inference we can draw from the language is that the court would have charged the jury that if they believed the evidence they should answer the issues as already indicated.

The question, then, is whether if the evidence is taken as true there is any reasonable view of it which would entitle the plaintiff to a trial of the issues by a jury, the evidence being considered in the most favorable light for him. In Neal v. Railroad, 126 N. C., 641; 49 L. R. A., 684, the court referring to facts similar to those we have in this case says: “The usual rule is to submit the issue to the jury with the instruction that if they believe the evidence they will find the issue ‘Yes’ or ‘No,’ as the case may be. This is usually a good rule and in many cases saves an appeal to this court. Eut the court could not do that in this case without impeaching the plaintiff’s witnesses. All the evidence was offered by the plaintiff, and the defendant had demurred to it. This was an admission by the defendant that the evidence was true. The plaintiff offering the evidence had vouched for its credit. He could not impeach its credit. As to the plaintiff, it stood unimpeached and unimpeachable. It is true that if the plaintiff had offered other evidence tending to *938show tbe facts different, then it would have become a matter for the jury as to- which witness they would believe.”

All the evidence in this case^ as we have stated, was introduced by the plaintiff and there is no contradiction in it It is plain, direct and conclusive in establishing negligence on the part of the plaintiff’s intestate, which was the proximate cause of her death. It can make no- difference whether he has failed to show negligence of the defendant, or whether, having shown such negligence, he has also- shown by his own proof that the intestate’s negligence was concurrent, up to the last moment, with that of the defendant, or that, after the defendant was seen or could have been seen to be negligent, the intestate had the last clear chance to avoid the injury. In either case, the plaintiff would not be entitled to recover. The case discloses that the situation of the plaintiff’s intestate was such as enabled her to see and hear the train as it approached her in ample time for her to have left the track and averted the injury which caused her death.

We are unable to distinguish this case from Neal v. Railroad, supra. The facts in our case appear to be much stronger for the purpose of establishing contributory negligence than the facts in that case were. A brief statement of the facts will suffice to show that the death of the plaintiff intestate was caused by her own negligence, and that the case of Neal v. Railroad, supra, should apply and control in the decision of this case. The plaintiff’s intestate was- walking along the defendant’s track in the day time, with nothing so- far as appears to obstruct her view, and nothing to prevent her hearing the whistle or the noise made by the train. Indeed, she was- told by one of the witnesses that the- train was coming, and she answered in such a way as to clearly indicate that she was aware of its approach. In order to save herself, there was nothing to do but to step- from the- track, a mere matter of a moment. And, besides, it appears that *939her. companion directed her attention to the train, and be stepped off and was not injured. SHe was not on a public street, if that could make any difference, for it is evident that the cut was not considered as any part of the street, though it was used by the people in the vicinity as a common foot path. If it bad been a part of the street, and the duty of sounding the whistle or ringing the bell was imposed upon the defendant for that or any other reason, and the company would have been negligent if it bad not given warning of the approach of the train, it is conclusively shown in this case that the whistle was sounded and that the noise made by the train could easily have been beard by the intestate; and it further appears, as well as that fact can be established by testimony, that she actually did know that the train was coming. Everybody else saw and beard the train and left the track, and why was she not guiltv of negligence in not doing what they did, and did easily ? She bad equal opportunity with them and her failure to avail herself of it was an omission of duty on her part, which was necessarily the direct and proximate cause of her injury and death. The wrong, therefore, cannot, in any view of the testimony and in contemplation of law, be imputed to the defendant, even though it may have been guilty of negligence.

In Neal’s case the intestate was walking along the track and was seen by the engineer, but there was no direct evidence that the intestate either saw or beard the engine. In reference to the facts of that case, the court said: “If thé plaintiff’s intestate was walking upon the defendant’s road in open day light, on a straight piece of road, where be could have seen the defendant’s train for 150 yards, and was run over and injured, be was guilty of negligence, and although the defendant may have also been guilty of negligence in running its train at a greater rate of speed than was allowed by the town ordinance, or in not ringing the bell as required *940by the ordinance, and in not keeping a lookout by its engineer, as it should have done, yet the injury would be attributed to the negligence of the plaintiff’s intestate.”

In McAdoo’s case, 105 N. C., 140, this court held that the plaintiff was guilty of negligence, which in law was the proximate cause of his injury, because he stood or walked upon the track with his back towards the engine and did not see it before he was stricken, and that the speed of the train and the failure to give a signal did not alter the case.

In High v. Railroad Co., 112 N. C., 385, the court laid down the principle that the failure of the engineer to keep a proper lookout subjects the company to liability only in those cases where, if he had seen the situation of the injured party, it would have become his duty to have given the signal, and that he had the right to assume up to the last moment, when it was too late i» prevent the injury, that the person on the track would get out of the way, and that it made no difference how near the person was to the engine or train, or how fast the train was running. It appeared in that case that it was a windy day, that the train was late, that the plaintiff was wearing a bonnet which obstructed her view, but the court said that those facts could make no difference in the decision of the case, and that, under the facts and circumstances presented by the evidence for the plaintiff the law referred the injury to her negligence as its proximate cause, and held the company blameless. Many other cases to the same effect have been decided by this court. According to the principle declared in all of them, the question of liability is not to- be solved by any reference to what the defendant may have done or- omitted to do, but by the conduct of the plaintiff, and if the latter would not see when he could see, or would not hear when he could hear, and remained on the track in reckless disregard of his own safety, the law adjudges any injuries he may have received to be the result of his *941own carelessness. Parker v. Railroad, 86 N. C., 221; Meredith v. Railroad, 108 N. C., 616; Norwood v. Railroad, 111 N. C., 236; Syme v. Railroad, 113 N. C., 565; Stewart v. Railroad, 128 N. C., 518; Wycoff v. Railroad, 126 N. C., 1152; Sheldon v. Asheville, 119 N. C., 606; Ellerbe v. Railroad, 118 N. C., 1024.

But the case of Lea v. Railroad, 129 N. C., 459, is a direct authority in support of the ruling of the court below. In that case it appeared that the defendant, for the purpose of making up a. freight train, was moving two cars with an engine between them, one of the cars being drawn and the other pushed by the engine as in our case. The intestate of the plaintiff was standing on the end of the crossties in the town of Durham at a place where the track was used by pedestrians. There was no one on the front car to give a signal of the approach of the train and there was no bell rung or whistle sounded. The ordinance of the town of Durham prohibited the running of trains within its limits at.a greater rate of speed than eight miles an' hour, and the engine and cars were running at a greater rate of speed than the ordinance allowed. This court held, upon the facts thus stated, that the jury should have been instructed that “taking the plaintiff’s evidence and also the defendant’s evidence (there being no conflict in the evidence) as true, and the conclusion could not reasonably be avoided that the plaintiff’s, intestate by his own negligence contributed to cause the injury.” And, further, that “taking all the evidence together, there, was nothing which placed the intestate at a disadvantage as regards avoidance of the injury, and when such is the case no recovery can be had where both parties, that is to say, the intestate and the railroad company, were negligent.”

The only difference between Neal’s case and Lea’s case on the one side and our case on the other, is that in those cases the evidence tended strongly to show that the intestate did not *942see or bear the train, although he could have done so ; while in our case the evidence is conclusive that the deceased did know of its approach. The circumstances of themselves are sufficient to show that she did, and, besides, her own words, uttered in reply to a warning from one of the witnesses who was passing her at the time, practically excludes every doubt in regard to the matter. Her death was an unfortunate occurrence, but upon the undisputed facts of this case, the law does not attach any blame to the defendant, but imputes the wrong or negligence, which caused her death, to her own conduct in not avoiding the injury when she could easily have done so.

In the view we take of the case, it is not necessary to consider the other assignments of error.

Judgment Affirmed.

Douglas, J.,

dissenting. I always regret feeling compelled to dissent from the opinion of the court and especially so when "the case might justly be decided the same way upon grounds in which I could concur. I do not question the right of the court to select the grounds of its opinion and my remarks are not intended in the slightest degree as a criticism upon the court, but simply in justification of my own conduct. When the opinion of tire court forces upon me the determination of an unnecessary question, well knowing my views upon the matter, it compels me to dissent. The court first decides the case upon the following ground: “We can not infer from the statement in the record that the court intended to direct a verdict peremptorily for the defendant, and the only inference we can draw from the language is that the court would have charged the jury that if they believed the evidence, they should answer the issue as already indicated.” If the opinion had stopped here, it would have ended the case. Under the circumstances of this case, I would not then have felt compelled to dissent, although I am inclined *943to think the logical result of the adoption of the rule of the prudent man is to abrogate the old rule, that what constitutes negligence is a question of law. This court has said in Coley v. Railroad, 128 N. C., 534 (542); 57 L. R. A., 817, speaking through Burches, O. J.: “As we understand the question of prudence, and the ideal prudent man, are always a matter for the jury.” The court, however, then proceeds to reopen the “irrepressible conflict” by bringing in Neal v. Railroad, 126 N. C., 634; 49 L. R. A., 684. If the first ground taken by the court was correct, then the Neal case has no application whatever. The Lea case, 129 N. C., 455, would have still less. It is proper to state that the court, both in its present opinion and in the Lea case, treat the Lea case as being identical in principle with the Neal case. In other words, it construes the expression, “taking the plaintiff’s evidence and.also the defendant’s evidence,” to mean taking the plaintiff’s evidence with such of the defendant’s evidence as is favorable to the plaintiff. In that case the court says: “So far as we remember, every principle involved in this case is decided in Neal’s case, and that case must control this case.” While that opinion possessed at least the error of ambiguity, as was pointed out in my dissenting opinion, I presume we must accept this as its proper interpretation. My views were so fully expressed in my dissenting opinion in Neal’s case, 126 N. C., 647, that it is needless to repeat them at length. The principle that the court can never direct an affirmative verdict was clearly enunciated by a unanimous court in Spruill v. Ins. Co., 120 N. C., 141. This case has never been overruled or even directly questioned. It was accepted by this court as the invariable rule until the decision in Neal v. Railroad. Even in that case, it was expressly reaffirmed by this court. So we may consider Spruill’s case as correctly laying down the general rule, while Neal’s case constitutes merely an exception thereto. A brief refer*944ence to a few of the opinions of this court will show their general tenor: In Spruill v. Insurance Co., 120 N. C., 141, during my first term upon the bench, it is said for a unanimous court: “Where there is no evidence, or a mere scintilla of evidence, or the evidence is not sufficient in a just and reasonable view of it, to warrant an inference of any fact in issue, the court should not leave the issue to be passed upon by the jury, but should direct a verdict against the party upon whom the burden of proof rests. That the verdict should be directed against the party upon whom rests the burden of proof, is the essence of the rule.If the verdict of a jury is in the opinion of the court against the weight of evidence, it can be set aside, and to the proper exercise of this discretion there can be no objection. But to permit the judge to pass upon the sufficiency of the evidence necessary to> rebut a legal presumption without submission to the jury would infringe upon the exclusive powers of the jury.The rule laid down in some authorities that wherever the judge would be justified in setting aside the verdict as against the weight of evidence, he would be equally justified in taking the case from the jury and directing a verdict, can not receive our sanction. It is not the law in North Carolina and never can be under our present Constitution.”

In White v. Railroad, 121 N. C., 484, 489, Justice Eur-ches, speaking for a unanimous court says: “The court can never find, nor direct an affirmative finding for the jury. The most the court can do is to instruct the jury, where there is no conflict of evidence, that if they believe the evidence they should find yes or no, as the case may be.” In Wood v. Batholamew, 122 N. C., 177, 186, Justice Furches, again speaking for a unanimous court, says: “The burden of the issue of contributory negligence is on the defendant. It is an affirmative issue and cannot be found by the court. It *945must be determined, by the jury.” In Bank v. School Com., 121 N. C., 109, the same Justice speaking for a unanimous court sa^s: “But no matter bow strong and uncontradicted the evidence is in support of the issue, the court cannot withdraw such issue from the jury and direct an affirmative finding.” Tbe same words are quoted with approval by Justice Montgomery, speaking for a unanimous court, in Crews v. Cantwell, 125 N. C., 516 (519). In Cox v. Railroad, 123 N. C., 604, this court, Chief Justice Eairclotb alone dissenting, says: “A negative presumption necessarily accompanies the burden and remains until the burden is lifted or shifted by direct admissions or a preponderance of proof. . . . Where there is evidence tending to prove negligence on the part of both parties, the case must always be submitted to the jury, and it makes no difference if this evidence appears in the testimony of the plaintiff. Tbe court may say to the jury that there is no evidence tending to prove a fact but it can never say that a fact is proved. It is a settled rule of this court that a verdict can never be directed in favor of the party upon whom rests the burden of proof, who in all cases is considered to have the affirmative of the issue, whatever may be its form.” “Tbe burden of proving contributory negligence is always upon the defendant. Therefore a direction in bis favor, based in any degree upon the contributory negligence of the plaintiff, would be a direction in favor of the party upon whom rested the burden of proof, which is directly opposed to the uniform current of our decisions. If there had been any reasonable doubt that the burden of proving contributory negligence rested upon the defendant, it has been set at rest by Chapter 38 of the Laws of 1887. ... It therefore follows that on a motion for non-suit the court can consider only the evidence relating to the negligence of the defendant, and if there is more than a scintilla tending to prove such negligence, the *946motion must be denied and the ease submitted to the jury.” In Bolden v. Railroad, 123 N. C., 614, this court, with a single dissent, says: “By force of statute, as well as a settled rule of decision, the plea of contributory negligence is an affirmative defence in which the burden, both of allegation and proof, rests upon the defendant.” In Cogdell v. R. R., 124 N. C., 302, it is said by a unanimous Court that: “Contributory negligence and assumption of risk, being in the nature of pleas in confession and avoidance, are affirmative defences, and cannot be considered on a motion for non-suit.” A large number of other cases might be cited. The cases of Spruill v. Insurance Co., and Cox v. R. R., have been repeatedly cited with approval by this Court both before and after the rendition of its opinion in Neal’s case. In House v. R. R., 131 N. C., 103, Cook, I., speaking for a unanimous court, says: “The principle that the Court cannot direct a verdict in favor of a party upon whom rests the burden of proof is now too well settled to admit of discussion. Cox v. R. R., 123 N. C., 604, and cases there cited.” In Dorsett v. M’f'g Co., 131 N. C., 254, Chief Justice Eurches, speaking for a unanimous Court, cites Cox’s case twice with approval, as well as Bolden v. R. R., 123 N. C., 614.

The reason for the rule as above laid down is clear. It is there bounded by what may be called natural landmarks, the distinct line of separation between an affirmative and negative finding. Itself the logical deduction from the Act of 188Y, and depending for its location neither upon metaphysical angles nor artificial stakes, it is in itself capable of accurate definition and intelligent application. for this reason it is constantly recurred to except in a few cases where the requirements of natural justice, irrespective of the strict rules of law, have seemed to the Court to justify a departure therefrom. Hard cases are “the quick-sands of the law,” *947and it is not safe to bend the rule too far. Curves may be the lines of beauty, but those of right are usually straight

Clark, C. J., concurs in the dissenting opinion.