#### RAMSBOTTOM v. RAILROAD.

(Filed April 4, 1905.)

Railroads — 'Injury to Live Stock — Negligence—Proper Gare —Proximate Cause — Questions for Jury.

1. In an action against a railroad company for damages for injuries to horses, where the evidence showed that the horses were injured by running into a trestle, and that the train was one hundred yards from the trestle when they were injured and stopped one hundred feet from the trestle; held, that section 2326 of the Code in reference to the killing or injury of cattle and livestock by engines or ears and changing the burden of proof when action is brought within six months, does not apply.

2. To establish actionable negligence, the plaintiff must show that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff under the circumstances in-which they were placed, and that such negligent breach of duty was the proximate cause of the injury.

3. Proper care is that degree of care which a prudent person should use under like circumstances, and charged with a like duty.

*394. Tlie proximate cause of an injury is one that produces the result in continuous sequence and without which it would not occur, and one from which any man of ordinary prudence could foresee that such result was probable under all the facts as they existed.

5. Where two different conclusions could be fairly drawn as to whether there was a negligent breach of duty in not stopping a train and whether the injury was one that any man of ordinary prudence might have expected from the facts as they existed, an instruction that withdrew the decision of both of these elements of actionable negligence from the jury and submitted to them only the question whether the failure to stop the train caused the injury, was erroneous.

ActioN by T. IT. Ramsbottom and T. B. Smith, trading as Ramsbottom & Smith, against Atlantic Ooast Line Railroad Company, heard by Judge Geo. H. Brown, Jr., and a jury, at the October Term, 1904, of the Superior Court of CouuMbus County. ‘From a judgment for the plaintiffs, the defendant appealed.

Lyon & Lyon for the plaintiffs.

Junius Davis, for the defendant.

Hoke, J.

There was evidence to the effect that some time prior 'to the commencement of this action, and within six months, two horses owned by the plaintiffs got on the track of defendant company at a point about a quarter of a mile from a trestle, and one hundred yards or little more ahead of one of defendant’s trains, which was approaching from the south. The track was straight for at least a half mile back from the trestle, and at a point about 150 yards from the trestle a wagon road crossed the railroad track. The horses ran along the track about 100 yards ahead of the train, passing the wagon road crossing, and continued to go along the track till they ran into the trestle and were seriously injured. When the horses were' seen by the engineer of defendant’s train about a quarter of a mile from the trestle, *40tbe speed of tbe train was slackened to six miles an hour, and tbe train being fully under control, followed along behind tbe borses at a distance of one hundred yards until tbe borses were injured, and stopping at a distance of one hundred feet from tbe trestle. There was some conflict of evidence as to tbe speed of tbe borses as they went along tbe track ahead of tbe train, and some conflict as to tbe character and condition of the ground, tending to make it more or less probable that tbe borses would leave tbe track without stopping tbe train.

Upon these facts tbe judge below held, correctly we think, that tbe statute in reference to tbe billing or injury of cattle and live stock by engines or cars running on any railroad (Code Sec. 2326) and changing the burden of proof when action is brought within six months, does not apply and tbe burden of the issue as to negligence was on tbe plaintiff. This point is really not before us, as tbe ruling of bis honor was against tbe plaintiff, who did not appeal; but as there will be another trial, and tbe same question will arise, we deem it not improper to express our opinion concerning it.

Properly then, putting tbe burden of this issue on tbe plaintiff, tbe court further charged tbe jury as follows: “That up to tbe time tbe borses passed tbe crossing there was no negligence on tbe part of the engineer. Tbe evidence showed that be bad slowed down tbe train and bad shut off steam and bad tbe engine under control; and be bad a right to believe that tbe borses could get off tbe track or turn off at tbe crossing. After tbe borses jDassed the crossing, if an engineer of ordinary prudence and care could by reasonable diligence have seen that tbe borses were badly frightened and were rushing forward towards the trestle, then it was tbe engineer’s duty to stop tbe engine, and if you find tbe further facts to be in addition that tbe borses were driven on to tbe trestle by the approaching train, and its failure to stop sooner than it did after passing the crossing, *41it is negligence on tbe part of the defendant, and you will .answer the first issue yes.”

In this charge we think there was error which entitles the defendant to a new trial. It has been held in this State that where the facts are undisputed and but a single inference can be drawn from them, it is the exclusive duty of the •court to determine whether the injury was caused by the negligence of one or the concurrent negligence of both of the parties.

But where, upon the facts admitted, or as they shall be found by the jury, men of fair minds could come to different conclusions on the question of actionable negligence, it is the province of the jury to determine whether such negligence does or does not exist. Russell v. Railroad, 118 N. C., 1098; Graves v. Railroad, 136 N. C., 3.

To establish actionable negligence, the question of contributory negligence being out of the case, the plaintiff is required to show by the greater weight of the testimony, first, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiffs under,the circumstances in which they were placed, proper care being that degree of care which a prudent man should use. under like circumstances and charged with like duty; and, second, that such negligent breach of duty was the proximate cause of the injury — a cause that produced the result in continuous sequence and without which it would not,have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed. Shearman & Red. on Neg. Sec. 25-28; Brewster v. Elizabeth City, at this term (131 N. C.,)Raiford v. Railroad, 130 N. C., 597; Pittsburg v. Taylor, 104 Pa., 306; McGowan v. Railroad, 91 Wis., 147.

We are of the opinion that the present case is one in which two different conclusions could be fairly drawn as to whether *42there was a negligent breach of duty in not stopping the train, and whether the injury was one that any man of ordinary prudence might have expected from the facts as they existed.

The charge of the court, we think, withdrew the decision of both these elements of actionable negligence from the jury, submitting to them only the question, whether the failure to stop the train caused the injury.

There will be a new trial, and with appropriate Instructions on the degree of care required, and as to the meaning of proximate cause, the question will be left to the jury to determine whether there was a negligeg.it breach of duty in failing to stop the train, and whether such failure to stop was the proximate cause of the injury, the burden of the issue being on the plaintiffs.

. New Trial.

ReowN, J. took no part in the decision of this case.