#### W. M. MORROW v. SOUTHERN RAILWAY COMPANY.

(Filed 20 May, 1908).

1. Railroads — Crossing Signals — Trespasser—Evidence—Negligence per se, When Not.

The failure of the employees of a railroad company to give crossing signals at a public crossing does not constitute negligence per se, when the injury complained of occurred to a pedestrian while using the track at a different place, but is only evidence of negligence under certain conditions.

2. Same — Question for Jury.

The duty of a railroad company’s employees to give crossing signals is to those who have a right to cross its tracks at places for that purpose, and not to those who use the track for pedestrian purposes at other places; but when it appears that the injury complained of occurred in the nighttime, that the engine causing it had no headlight, and there was evidence tending to show that no crossing signals were given of the approach of the train at a nearby crossing, and that people in the vicinity were accustomed to walk where the injury occurred, the evidence should be submitted to the jury, on the question of negligence upon the part of the railroad company, as to whether the train was carefully operated at the time of the injury, or whether proper warnings were given in a reasonable time to avoid it.

S. Appeal and Error — Instructions—Error in Part.

When it does not appear upon what theory or findings of fact a jury has rendered its verdict under a charge incorrect in part, error in any one of the instructions which may have influenced the jury upon the question involved entitles the appellant to a new trial.

Clark, O. J., dissenting, arguendo.

ActioN tried before Peebles, J., at December Term, 1907, of Bueice.

The plaintiff alleged and introduced evidence to prove that he was walking along and near the track of the defendant company in the town of Highland, just below and east of Hickory, when he was struck and badly injured by an engine pulling a train of the defendant, which was running, six hours late, at, a high rate of speed. There was evidence in the case tending to show the following facts: That the plaintiff was using the *624track of the defendant for bis own convenience as a walkway, and when he saw the train approaching him he stepped from the track, but, not having reached a place of safety in time, he was struck by the engine and injured. The headlight of the engine had been extinguished, and the engineer gave no signal of the approach of his engine. Five hundred yards west of Highland there was a crossing used by the employees of a furniture factory and even by the public generally, and 250 yards stil^ further west there was a street crossing within the corporate limits of Hickory. By reason of the darkness, it being midnight, and the absence of a headlight, the plaintiff could not see the engine as it came towards him. No signals, by bell or whistle, were given at the crossings, There was other evidence, that tended to show that there was a headlight, and that without one the train could be seen by the plaintiff or anyone on the track a sufficient distance for him to leave the track in time to avoid any injury. The different phases of the evidence were presented to the jury by the court, with instructions as to the law, except in the particulars hereinafter mentioned.

The defendant requested the court to charge the jury as follows: “The purpose aimed at in requiring that the whistle shall be sounded or the bell rung on the approach of an engine and train to a highway crossing is to give notice to travelers on such highway of the approach of the train to such crossing. If, therefore, you find from the evidence that the plaintiff was walking on or along the defendant’s ordinary track, not at a highway crossing or other place where he had a right to be, then the defendant was not required either to sound its whistle or ring its bell at the highway crossing west of the point where the plaintiff was injured, in order to give him notice of the approach of its engine or train to such highway crossing, and such failure would not constitute negligence, -if you should find there was such failure.” This instruction was given, but *625with tbis addition, “unless yon shall find from the evidence that the engine bad no headlight.”

There was a verdict and judgment for the plaintiff, and the defendant appealed.

A. A. Whitener and W. A. Self for plaintiff.

S. J. Ervin for defendant.

WaleeR, J.,

after stating the case: The defendant excepted to the amendment of the instruction and insisted that it should have been given as it was asked. In this view we concur, .and think the Judge erred in so modifying the instruction as to make its application to the case depend upon the presence of a headlight. It was clearly .the duty of the defendant to run-its train in a prudent manner and with such appliances which are approved and in general use, as a headlight, as will enable persons on its track to know of the approach of the train, if they exercise due care by looking and listening. If the train is so operated that it cannot be seen or heard in time for persons on the track, not ,at a crossing, to escape therefrom and avoid injury,' then the defendant’s engineers should give such signal by bell or whistle, and sometimes perhaps by both, as may be reasonably sufficient to warn persons on the track of the approach of the train. Edwards v. Railroad, 132 N. C., 99.

The duty of the railroad company is to give reasonable and proper warnings for the protection of travelers on a highway when trains are approaching, and a traveler may be said to have the right to presume that this duty will be performed, but this does not discharge him from the duty to exercise care for his own safety. If the defendant fails to give such signals as the circumstances reasonably require to warn a traveler on a highway which crosses the track, and the latter is injured by reason thereof, and has not proximately contributed to his own injury by failing to look and listen, or, in other words, to exercise the care of a prudent man, there is actionable neg*626ligence, and be may recover for tbe injury. Tbe warning should, of course, be given at a sufficient distance to be effectual for tbe purpose intended. 9 Am. and Eng. Enc., 413. Tbe omission to give tbe signal at a crossing does not, as we have stated, relieve tbe traveler on tbe highway of tbe duty, as a prudent man, to look and to listen.” Cooper v. Railroad, 140 N. C., 209. “Both parties are charged with tbe mutual duty of keeping a careful lookout for danger, and tbe degree of diligence to be used on either side is such as a prudent man'would exercise under tbe circumstances of tbe case in endeavoring to perform this duty.” Improvement Co. v. Stead, 95 U. S., 161. But it is held, as we think, by tbe great weight of authority that tbe duty to give signals near crossings of tbe approach of trains does not exist in favor of persons walking along tbe track or parallel with and dangerously near tbe same, when such pedestrians are on or near tbe track between tbe crossings; and tbe failure to give crossing signals, as to them, is not negligence per se, but is only evidence of negligence in proper cáses. Tbe principle will be found stated with clearness in 8 Am. and Eng. Enc. of Law, pp. 409, 410, tbe cases being collected in tbe notes. A person walking on a railroad track or so near thereto as to be in danger of being struck by a passing train cannot complain of any breach of duty which tbe railroad company did not owe to him. Travelers on a highway which crosses a railroad track have tbe right to use tbe highway, and are therefore entitled to notice of tbe approach of trains to tbe crossing, but pedestrians using tbe track as a walkway cannot claim that tbe same duty of giving warning near crossings .is due to them, for they are not using tbe highway. Randall v. Railroad, 109 U. S., 478. But tbe fact that no such warning was given, while not negligence per se as to tbe pedestrian using tbe track for bis own convenience, may be evidence of negligence as to him in tbe operation of tbe trainj when it is run in tbe nighttime without a headlight, and prudence re*627quires a warning to be given. There was evidence in this case that tbe plaintiff, when be was injured, was where people in the vicinity were accustomed to walk, and under the circumstances he was entitled to notice of the approach of the train, if there was no headlight and it was so1 dark that he could not see it in time to leave the track. Purnell v. Railroad, 122 N. C., 832; Heavener v. Railroad, 141 N. C., 245; McIlhany v. Railroad, 122 N. C., 995; Lloyd v. Railroad, 118 N. C., 1010. Tie alleged that no warning by bell or whistle was heard by him; and the fact that there was no signal given for the crossings, if such was the fact, is some evidence to be considered by the jury as to whether the train was" carefully operated at the time of the injury, and as to whether proper warning was given to him of the approach of the train, though it was not conclusive upon the question of negligence, so as to justify an instruction from the court clearly implying that if there was no headlight on the engine it was negligence not to give the usual signals for the crossings. If the plaintiff was a mere trespasser on the track, using it for his own convenience or without any license or permission of the company, express or implied, he certainly is not entitled to rely on a crossing signal, as the company owed no duty to him other than to enable him, by its careful operation of the train with respect to the place where he was hurt, to escape danger. Its failure to have a headlight, so that he could see “the train as it approached, was negligence as to him. If he actually saw the train or heard it as it approached him, and failed to clear the track, if he had reasonable time to do so, he was guilty of negligence which defeats his recovery. The doctrine is thus stated in Williams v. Railroad, 135 Ill., 491: “In order to a recovery for negligence, it is not sufficient to show that the defendant has neglected some duty or obligation existing .at common law or imposed by statute, but it must be shown that the defendant has neglected'a duty or obligation which it owes to him who *628claims damages for the neglect. The duty of railroad companies to ring a bell or sound a whistle on a train approaching a highway crossing is intended for the protection or benefit of travelers upon the public highway and passengers upon the passing train, and the place indicated is the intersection of a railroad with a public highway.” It may be tersely expressed thus: If'the defendant owes a duty, but does not owe it to the plaintiff, the action will not lie in favor of the plaintiff, even if there is a breach of the duty. Sh. & Redf. on Neg. (4th Ed.), sec. 8; Bish. on Noncontract Law, sec. 446. Reid v. Railroad, 140 N. C., 146, which was cited by the plaintiff's counsel in support of their contention, is not in point, as there the injured person was on the highway or street, where she had the right to be. In Fulp v. Railroad, 120 N. C., 525, there was a nonsuit, and it would have been correct to hold that the failure to give the proper signals for the crossing was evidence of negligence, but in fact the decision turned upon an erroneous instruction that if a signal given at the usually safe distance would not have aroused the plaintiff’s intestate, who was lying drunk upon the track, there was no negligence, which excluded from the consideration of the jury the duty of the defendant to avail itself of the last clear chance to save the life of the intestate. In other cases where it has been held that a failure to give the proper signal of the approach of a train to a crossing is negligence, it will be found either that the injured party was attempting to cross the track on a public highway or that there were other facts and circumstances which actually controlled the decision of the Court without necessarily involving the principle herein discussed. Stewart v. Railroad, 136 N. C., 385, is the only case where any very clear intimation as to the law upon this question is given, and it was in favor of the view we take in this case.

If the plaintiff was where he had the right to be when he was injured, it may be that the conduct of the defendant in operating its train constituted actionable negligence, within *629tbe principle laid down in Read v. Railroad, supra, and the cases therein cited, and also in Heavener v. Railroad, supra. But we are unable to say upon what theory or under which part of the .charge of the court the verdict was based, and therefore error in any one of the instructions which may have influenced the jury entitles the defendant to a new trial. Tilleti v. Railroad, 115 N. C., 663; Williams v. Haid, 118 N. C., 481; Edwards v. Railroad, 132 N. C., 99. The cases we have cited relate to conflicting instructions, but the principle upon which they were decided applies with equal force to a case of this kind, when it is impossible--to. determine upon which of the instructions the jury proceeded in finding their verdict.

New Trial.

Clark, 0. J.,

dissenting: The defendant’s train was running at night, six hours late, and at a high rate of speed. The instruction, as modified by the Judge, is that if the engine was running under such circumstances, without a headlight, it was negligence not to give notice to plaintiff on the track of the approach of the train or engine by either sounding the whistle or ringing the bell at the highway crossing west of the point where the plaintiff was struck; otherwise if there was a headlight. Even though the plaintiff was on the track, he was surely entitled to some notice of the approach of the train.

In Willis v. Railroad, 122 N. C., 905; Powell v. Railroad, 125 N. C., 374, and Hord v. Railroad, 129 N. C., 306, it was held negligence not to give one on the track notice by blowing the whistle or ringing the bell at the customary places. Here, at the request of defendant, the court charged the opposite of this — that failure to blow the whistle or ring the bell at the crossing was not negligence as to the plaintiff unless the defendant was running its engine without a headlight.

The court might well have told the jury that running a traip at night, six hours out of schedule and .at a high rate of *630speed, without a headlight, was negligence. The absence of a headlight when dark enough is always held negligence. Willis v. Railroad, supra. It was in the defendant’s favor that the court below- held that' the absence of a headlight under such circumstances could be supplied by giving the customary signals at the crossing near by. There is no error of which the defendant can complain. The jury found there was no contributory negligence.