#### DORA ALLEN v. NORTH CAROLINA R. R. CO.

(Filed 2 December, 1908).

Railroads — Negligence — Lights — Signals — Crossings—Evidence— Nonsuit.

Plaintiff’s intestate was killed by defendant’s train, consisting of an engine and twenty freight cars, ba'cking along its track on a dark night, without signals or warnings, and without lights on the rear car from the engine. At the place of the injury was an embankment on which was a track of another company running parallel with that of defendant. The injury occurred while plaintiff, an employee, was going home from his work, and crossing the tracks at a place where, to defendant’s knowledge, people usually crossed. The evidence tended to show that on top and about the middle of the train were two men standing with lighted lanterns. Held, a judgment as of nonsuit upon the evidence should not be sustained, as the question was for the jury to determine whether the lanterns could have been readily seen at the time, and under the circumstances, by an observant person on the ground.

ActioN, beard before Justice, J., and a jury, June Term, 1908, of MecKleNbüRG, to recover damages for tbe alleged negligent killing of plaintiff’s intestate, P. PI. Allen.

At the conclusion of plaintiff’s evidence, a motion to non-suit was sustained, and the plaintiff excepted and appealed.

McNinch & Kirkpatrick and Morrison & Whitlock for plaintiff.

W. B. Rodman for defendant.

BeowN, J.

The evidence tends to prove that the plaintiff’s intestate was killed on defendant’s track on 2 February, 1906, in the city of Charlotte. lie was an employee of the Seaboard Air Line and had left his work to go to his home. The tracks of the Seaboard Air Line and defendant are parallel for some distance, and people habitually walk on the tracks of both roads along where the accident occurred. There is a path between the two roads, which crossed the track of the defend*259ant twice between tlie two crossings. Tlie scene of tlie accident was between tlie two crossings, on a very dark and windy night. A train operated on defendant’s road, consisting of an engine and two box cars, moving backwards, the engine pushing the cars, struck the intestate and killed him.

The alleged scene of this accident is on an embankment some fifteen feet high, and about five hundred and eighty-six feet north of this crossing of the two railroads. The tracks of the defendant and the Seaboard Air Line are both located on this embankment, and ten feet eight inches apart.

The- steam of the engine was shut off, and the train was moving down grade at the rate of about twelve miles per hour.

The plaintiff alleged three distinct acts of negligence, to-wit: that the defendant operated an engine and train of cars over a portion of its track running through A street, or if not A street, then a place used as a common walkway by the public in the city of Charlotte, on a very dark and rainy night, without having a light or other proper signal on the lead or forward -car; that it ran the train faster than the law allowed; that it ran the train without ringing the bell as the law required.

We are of opinion that there is error in his Honor’s ruling in sustaining the motion to nonsuit, and that, upon the evidence, he should have submitted the case to the jury upon proper issues and instructions.

It is in evidence that the car which was on the end of the backing train had no light on the end of it, but that two men were standing in the middle of it with lanterns in their hands hanging by their sides. As the cars, according to the evidence, are about fifteen feet in height from the earth and near thirty-six feet in length, we are unable to say whether lanterns so held in the middle of the car could be readily seen by an observant person on the tracks below. Much would depend upon the height at which the lantern was held above the top of the car. We think this is a matter peculiarly for the con*260sideration of the jury as to ■whether a lantern so placed would answer the same purpose as one on the end of the car.

. It has been repeatedly held by this Court that it is negligence in a railroad company to back its trains along a place iised by the public, as a common walkway, in the night time, without a light on the end of the backing train so as to give warning of its approach.

It is true, as contended, that such breach of duty does not relieve the individual of all obligation to look and listen for engines and trains, when he attempts to walk on or cross the tracks of the company, nor does it absolve him from the consequences of such negligence.. Cooper v. R. R., 140 N. C., 209; Heavener v. R. R., 141 N. C., 247.

But we find in the record nothing that would warrant a judgment of nonsuit .upon the ground of contributory negligence, apparent from plaintiff’s evidence.

There is also evidence, that although the whistle was blown for a crossing 586 feet from where the intestate was killed, the bell was not rung and no other signal given of the approach of the train after it passed the crossing.

We fail now to see how the speed of the train, whether four or twelve miles per hour, whether in violation of the city ordinance or not, could have been the proximate cause of the injury under the circumstances of this case, but that may be made clearer upon the next trial.

New trial.