#### W. L. FARRIS, Administrator of Stanly Farris, v. SOUTHERN RAILWAY COMPANY, H. C. SMITH and W. T. MOONEYHAM.

(Filed 15 December, 1909.)

1. Railroads — Negligence—Evidence Sufficient — Nonsuit.

In an action against a railroad company for damages for the negligent killing of plaintiff’s intestate, a motion of nonsuit upon the evidence should be allowed if the evidence does not prove, or tend to prove, a breach of duty resulted proximately in the injury complained of.

*4842. Railroads, Crossing — Custom—Notice Implied.

A custom of six months’ duration of a large number of employees of defendant railroad company to cross the yards and a large number of tracks of defendant in going, at dinner time the shortest way to arid from their homes, fixes the company with notice of the fact, and that it was the custom of its own employees.

3. Same — Employer and Employee — Trespass.

Employees who are accustomed in large numbers to cross defendant’s railroad yards and a large number of its tracks in going to and from their dinner at the noon hour, with the knowledge and acquiescence of the defendant, cannot be regarded as trespassers in so doing.

4. Railroads — Flying Switch — “Kicking Cars” — Negligence Per Se.

It is negligence per se for a railroad company to make a flying switch or “kick” or “shunt” cars on its yard, wherein there are a large number of tracks, at a place where, and a time when it was the known custom of the company’s employees to cross, without brakemeu or other like employees of the company on the cars being thus placed to give notice or warning of their approach.

5. Same — Evidence Sufficient.

Evidence is sufficient to sustain a verdict on the issue of defendant’s negligence which tends to show, that plaintiff’s intestate, an employee of defendant railroad company, was run over and killed by defendant in making a flying switch while he was crossing the yard at a place where, and a time when the intestate, with a large number of other employees, were accustomed to cross with the. acquiescence of the defendant; that while he was crossing the tracks, they being close together, an engine running without warning or signals from thirty-five to forty miles an hour, passing in two feet of him, caused his hat to blow off on the track he had just crossed and the injury was caused when he was stooping to pick it up by cars which had been “shunted” coming upon him noiselessly at the rate of eight or ten miles an hour -with no watchman on them to ¿ive warning.

6. Same — Continuing Negligence — Proximate Cause.

In this case the negligent act of the defendant, a railroad company and its conductor and engineer, in running an engine on its yards without signal or warning at the rate of thirty-five or forty miles an hour at a place where, and time when they knew, or should have known, that employees of the company would cross, going to and from their homes for dinner, and which caused the death of plaintiff’s intestate, one of such employees, continues up to the collision with the intestate, and, without fault on his part, is the proximate cause.

7. Railroads — Contributory Negligence — “Look and Listen,” Exceptions to Rule — Evidence—Nonsuit.

The plaintiff’s intestate, in an action against a railroad company for damages for negligent killing, in drawing back from an engine negligently running in two feet of him, at the rate of thirty-five or forty miles an hour, without signal or warning, and killed by cars “shunted” onto the track he had just crossed running at the rate of eight or ten miles an hour, without watchmen *485on them, while stooping to pick up his hat which the moving engine had caused to blow there from his head, the tracks being near together, is not held to that degree of care ordinarily required of one crossing a railroad track to stop, look and listen, .and a motion of defendants to nonsuit upon this evidence on the question of contributory negligence was properly disallowed.

8. Contributory Negligence — Pleading—Proof—Burden of.the Issue.

Contributory negligence will not be presumed in law, it must be alleged and proved by the defendant, the burden of the issue resting upon him and the burden of duty on the plaintiff.

9. Same — Evidence—Questions of Law.

To establish contributory negligence as a matter of law, the evidence must show such omission of caution by plaintiff, or the doing of such, acts, that only the inference of plaintiff’s negligence can be drawn therefrom by men of ordinary. reason and intelligence.

10. Issues — Negligence — Contributory Negligence — Last Clear Chance.

In an action for the negligent killing by defendant of plaintiff’s intestate, when there is evidence of concurring negligence of the plaintiff and defendant, it is proper to submit an issue of “the last clear chance,” though such issue may .thereafter become immaterial under the verdict rendered.

11. Same — Harmless Error.

In this case, where damages are sought against a railroad company for the negligent killing of plaintiff’s intestate while crossing its tracks, evidence tending to show that defendant company could have provided a safe way of crossing by building at small cost an overhead bridge, directed to the issue of negligence, was improperly admitted; but as defendant offered no evidence and there was, independently, plenary evidence of defendant’s negligence to justify an instruction that the jury answer the issue against defendants, subject only to the credibility of the witnesses, the error was harmless.

Appeal from. J. S. Adams, June Term, 1909, of Btjkke.

His Honor submitted issues to tbe jury, presenting (1) tbe negligence of tbe defendants; (2) tbe contributory negligence of tbe plaintiff’s intestate; (3) tbe last clear cbance; (4) damages. Tbe jury answered all tbe issues in favor of tbe 'plaintiff, and assessed damages in tbe sum of $6,000. Tbe case was beard entirely upon tbe evidence of witnesses offered by tbe plaintiff. Tbe defendant offered no testimony, and moved for judgment of nonsuit at tbe close of tbe evidence, wbicb motion was disallowed, and defendant qxcepted. Tbis exception, together with exception taken to tbe adverse rulings of bis Honor in admitting certain evidence of tbe plaintiff, and exceptions to bis Honor’s charge, present the questions for consideration.

Tbe evidence offered shows tbe following facts: Stanly Farris was killed on 29 May, 1907, at about 12 o’clock of tbe day, by *486being run over by four gondola cars moving on a track in tbe yard of tbe defendant, Southern Railway Company, at Ashe-ville. Tbe intestate was an employee of the defendant company and bad been in its service for about eight months prior to bis death. Tbe defendant company was doing on its yards at Ashe-ville a large amount of work, rearranging its tracks, widening its yard, increasing tbe number of tracks and building a stock pen. Tbe intestate bad been constantly and regularly at work for defendant company, engaged in doing different jobs, as a water boy, carrying water for tbe other employees, etc., and for a week prior to bis death bad been assisting in building tbe stock pens. The stock pens were on tbe south side of tbe yards; tbe intestate lived on tbe north side of tbe yards. On tbe south side tbe embankment was about 3 or 3% feet high; on tbe north side, about 25 feet, except at a depression. Tbe employees of tbe defendant company, numbering from 100 to 150, some of whom worked on tbe yards, others elsewhere, together with other laborers working for a tannery on tbe south of tbe defendant company’s yards, crossed tbe yards to and from tbe degression in tbe embankment on tbe north side to and from tbe south side, from two to three times daily. A whistle, sounded at tbe round bouse of tbe defendant company, gave tbe signal for its employees to stop at tbe noon hour for dinner. Tbe place, above described, where tbe large number of employees crossed tbe yards, was about three-fourths of a mile to a street crossing on the east and about 700 yards to a street crossing on tbe west, and from bank to bank was about 100 yards. This place contained eighteen or twenty tracks. "When Stanly Farris, the intestate, started to cross tbe yards, on 29 May, 1907, at 12 o’clock of tbe day, there were many cars standing on tbe tracks to tbe east of him about 30 to 35 yards. He. crossed tbe first and second tracks in safety and was walking down tbe space, from' 6 to 8 feet wide, between these tracks. He was walking westward, and bad gone a few steps, when aii engine, moving on tbe third track, from tbe south, at from 35 to 40 miles an hour, passed him, blowing off bis bat, which fell on tbe second track, and as be stooped to pick it uj) be was struck, run over and killed by tbe four gondola cars loaded with coal. Tbe defendant company, through tbe co-defendants, Smith, its conductor, and Mooneybain, its engineer, bad made what was called a “flying switch,” and four coal cars were sent westward on tbe second track and were moving at tbe rate of eight or ten miles an hour, and tbe engine took the third track. Tbe switch at which tbe engine was separated from tbe coal cars was 35 or 30 yards east of tbe intestate. No bell was *487rung, whistle blown or other signal given by the rapidly moving engine. The coal cars were moving noiselessly, with no watchman on any of the four cars, and no warning given to intestate of their approach. The intestate was about seventeen years of age, sober, hard-working, in good health, saving of his wages, and was at the time earning $1.35 per day.

From the judgment entered on the verdict the defendants appealed to this Court.

Avery & Avery and Avery & Ervin for plaintiff.

8. J. Ervin for defendants.

Manning, J.,

after stating the case: The question first presented for our consideration is the negligence of the defendants. If the evidence does not prove or tend to prove a breach of duty by the defendants towards the plaintiff’s intestate, and that such breach of duty resulted proximately in the injury complained of, then it must follow that the motion to nonsuit ought to have been allowed for failure of proof on the first issue.

In Wilson v. Railroad, 142 N. C., 333, Mr. Justice Brown, speaking for this Court, said: “The attempt to make a running switch across a much-frequented street is not only a negligent but a most dangerous and unwarranted operation, and has been so held by a number of courts. Bradley v. Railroad, 126 N. C., 735; Brown v. Railroad, 32 N. Y., 597; Falener v. Railroad, 68 Miss., 355; Railroad v. Summers, 68 Miss., 566; French v. Railroad, 116 Mass., 537; Railroad v. Garvey, 58 Ill., 83; Railroad v. Baches, 55 Ill., 379. It matters not whether the purpose was to ‘shunt’ the car off on a switch or to give it force enough to roll along on the same track; it is negligence to permit a car to be ‘cut loose’ and roll, uncontrolled by anyone, across a much-used crossing.” In Allen v. Railroad, 145 N. C., 214, the same learned Justice said: “The word ‘kicking’ seems to be used in railroad parlance as synonymous with making a ‘flying switch.’ This Court has never held such operations to be per se negligence in respect of the employees performing them. It is the attempt to make a running switch when the detached car has no brakeman on it and is under .no control that is declared to be negligence, because highly dangerous. Wilson v. Railroad, 142 N. C., 336, and cases there cited.” Vaden v. Railroad, 150 N. C., 700. In Bradley v. Railroad, 126 N. C., 735, this Court held: “A crossing which the public have- been habitually permitted to use is treated as a public-highway crossing. Russell v. Railroad, 118 N. C., 1098.” In 3 Elliott on Railroads (2d *488Ed.), see. 1265g, this learned writer says: “The practice of making running or flying switches is inherently dangerous, and is so considered by the courts in numerous decisions. The courts have not hesitated to hold railroad companies liable for injuries to trespassers on the track, thus inflicted, on the ground of negligence. The case of this negligence seems specially plain where the cars are sent in swift motion, with no one at the brakes, upon switch tracks commonly used by persons for footpaths and crossings, without objection from the company, though not a public crossing. It would seem a duty owed by the railroad company, even to trespassers, to station lookouts in such positions on the moving cars, that they can watch the tracks ahead of them and warn persons thereon of their danger.” Conley’s Admr. v. Railroad, 89 N. Y., 402; Railroad v. Crosnoe, 72 Tex., 79. In Vaden v. Railroad, 150 N. C., 700, Mr. Justice Brown, speaking for the Court, in stating the facts of that case, said: “The evidence for the plaintiff tends to prove that he was killed about thirty feet from where Tomlinson Street crosses the tracks. The evidence of the defendant locates him farther from the crossing. All the evidence shows that these switch tracks were situated in a populous part of the city and adjacent to and close by factories, where many people of all ages were employed. At the time the intestate was killed, the factory had just closed for the day and the employees were filling the streets and crossings. The court permitted evidence to the effect that there is much passing by school children, factory hands and citizens generally .along Tomlinson Street and in the vicinity of the accident, to which defendant excepted. ¥e see no objection to this evidence. It tended to establish conditions that should have put the defendant on notice as to the necessity for caution in moving its cars at that point. Railroad v. Smith, 18 L. R. A., 66.”

In the present case the intestate of plaintiff occupied toward the' defendant company the relation of employee, and of this relationship the law certainly fixes the company with knowledge. He was not a-trespasser in crossing its tracks. He, together with a large number of other employees of defendant company (among them, others, not employees, were intermingled), some of whom worked on the yard, others on the stock pens, had been accustomed for about six months to cross the yards at or about the place where plaintiff’s intestate was killed, and at least one of the hours during the day, when they crossed the yard, was indicated by a whistle from the round house of defendant company. Crossing at this point enabled the employees to reach their homes and boarding places more quickly and to return to their work *489‘more promptly. A custom of its own employees continuing for six months, and observed by it without protest or objection from the defendant company, we must hold to have continued long enough to fix the defendant with knowledge of its existence. In addition, the defendants, in their joint answer, admit that the intestate of plaintiff was accustomed, in going in a direct course to and from his place of employment to his boarding house, to pass through the yards of the defendant company and cross its tracks. In Bordeaux v. Railroad, 150 N. C., 528, it was held “undoubtedly culpable negligence” to “kick” a car on a track in a shifting yard, resulting in injury to plaintiff, who was at work on a car on that track, but who failed to observe a rule of the company by placing a signal flag on the car as notice to engineers operating the shifting engine, there being evidence that the rule was much violated on “short jobs,” to the knowledge of the superintendent and engineers on the yard, and that the employees of the kicking engine saw repairers at work -on the car. Under the authorities cited, we think the evidence clearly'sufficient to sustain the finding of defendant’s negligence by the jury in response to the first issue, and that the negligent act of .the defendants continued up to the collision of the cars with plaintiff’s intestate, and without which the accident would not have happened.

We proceed next to the consideration of the motion to nonsuit, as it applies to the second issue — the contributory negligence of the plaintiff’s intestate. Upon this issue his Honor charged the jury: “It is the duty of persons going on the track of a railroad company to stop and look and listen for any train that may bs moving or lying on the track of such company and on its yards, where there are several tracks used for shifting cars, to be continually alert and on the lookout for a moving train or cars; and if a person fails in this duty, and in consequence, of such failure is injured by moving cars, the person would be guilty of contributory negligence.” While the burden of this issue rested on the defendants, the burden of duty rested upon the intestate. The law does not presume contributory negligence; it must be alleged and proven; the defendant must show such facts — either omissions to observe such cautions or the doing of such acts— from which only one inference, to-wit, the plaintiff’s negligence, can be drawn by men of ordinary reason and intelligence. Of the conduct and acts of the intestate the evidence discloses these facts: When he entered upon the yard he saw an engine and cars moving east of him; he crossed the first and second tracks, moving somewhat to the northwest; he had taken a few steps between the second and third tracks and was about to cross the. *490third track, when the engine sped by him at the rate of thirty or forty miles per hour; the draught caused by the rapidly moving engine blew off his hat, blowing it on the second track, which he had just crossed in safety; as he stooped to catch his hat he was struck by the coal cars and killed. The cars were moving at the rate of eight or ten miles an hour. The switch was 25 to 30 steps east of intestate. To make the flying or running switch with engine moving in front, it is, of course, necessary that the start must be made sufficiently beyond the switch to enable the engine to acquire such speed as to be uncoupled before reaching-the switch so far in advance of the cars as to permit the switch to be thrown and to send the detached cars a desired distance on the track. The engine had acquired the speed of thirty-five or forty miles per hour, and must have been making the noise usual to engines moving at such speed. According to one of the eyewitnesses, the detached cars were moving noiselessly. It can easily be inferred that? in the close presence to the rapidly moving engine, the "intestate could not have heard any noise from the moving cars. He had just crossed in safety the track upon which these cars were noiselessly moving, unguarded by any person stationed on them to warn him of their approach. His position and purpose were known to the defendants. The danger of a misstep or of deviating from an exactly straight line was obvious to the defendant engineer. The rapidly moving engine, passing intestate, was naturally calculated to make him draw away from it. The natural impulse was to grab at his hat and Jo stooj) to pick it up. A watchful brakeman on the cars, “keeping a continuous lookout,” would, assuredly, seeing his position of peril, have warned the intestate, and by such timely warning a human life would have been saved. Sawyer v. Railroad, 145 N. C., 24. There was, howpver, no brakeman or guard on these cars; no warning was given of their noiseless approach, and the only negligent act of the intestate which, the defendants allege, contributed to the intestate’s death and was its proximate cause, was his yielding, under the circumstances* described, to a natural impulse in stooping to grab his hat. It is not apparent that if intestate had turned to look behind to see if danger approached, he would not have been stricken, as the space between the cars passing on the adjacent track did not exceed two feet. While we are in nowise inclined to relieve the person crossing the tracks of a railroad from the imperative duty of observing the measure of caution so well established for his safety by the well-considered decisions of this and other courts, yet “it cannot always be said .that he is guilty of contributory negligence, as a matter of law, *491because be did not continue to look and listen at all times continuously for approaching trains,' where he was misled by the company or his attention was rightfully directed to something else as well” (3 Elliott on Railroads, sec. 1166a), or that he failed to look in opposite directions at the same moment of time. As is said by Mr. Justice. Hoke, in Sherrill v. Railroad, 140 N. C., 252, “It is further held that, negligence having been first established, facts and attendant circumstances may so qualify this obligation to look and listen as tq require the question of contributory negligence to be submitted to the jury, and. in some instances the obligation to look and listen may be altogether removed.” Inman v. Railroad, 150 N. C., 123; Morrow v. Railroad, 146 N. C., 14.

It must not be overlooked, in reaching a conclusion in this case, that the act which occasioned plaintiff’s intestate to be killed was immediately caused by the rapidly moving engine, passing within two feet of him, at a time and place where defendants admit that they knew the intestate would be crossing, and at a time and place where the uncontradicted evidence shows that between 100 and 150 employees of defendant company and others were accustomed to cross the tracks of the yard. We are therefore of the opinion that the motion to nonsuit, upon the evidence bearing on the second issue, ought not to have been allowed, and that his Honor did not err in submitting this issue to the jury.

The defendants objected to his Honor’s submitting the third issue — that issue presenting the “last clear chance.” While this, issue has become immaterial, in view of the finding of the jury on the first and second issues, we think it was proper for his Honor to have submitted it. If the jury had found with defendants on the second issue, having found the first issue with plaintiff, the ultimate liability of defendants would have been determined by their finding on the third issue. In the presence of the concurring negligence of a plaintiff and a defendant, it is a generally accepted doctrine, and well settled in this State, that the ultimate liability must depend upon whether the defendant could at the time have avoided the injury by the exercise of reasonable care, under the attendant circumstances. Ray v. Railroad, 141 N. C., 84; Reid v. Railroad, 140 N. C., 146; Lassiter v. Railroad, 133 N. C., 244; Arrowood v. Railroad, 126 N. C., 629; Pickett v. Railroad, 117 N. C., 616.

During the trial, the plaintiff, over defendant’s objection, was permitted to offer evidence tending to show that the defendant company could have provided a safe way of crossing by building *492at small cost an overhead bridge. This evidence was directed solely to the first issue; and while we are of the opinion that neither the defendant company nor its co-defendants were under the duty, under the facts of this case, to erect such overhead walkway, or bridge, yet, as we have concluded that the uncontra-dicted testimony, independent of this evidence, was plenary of the defendant’s negligence, and his Honor, upon such other testimony, would have been justified in instructing the jury to answer the first issue against the defendants, subject only to their belief in the credibility of the witnesses, we cannot see, under such circumstances, that the admission of such evidence was reversible error. This evidence could in no way have influenced the finding of the jury to the -second, third or fourth issues. The defendants, at the trial, offered no evidence at all, and no evidence in any way to relieve 'the inference of their negligence, to be drawn from the other evidence, uncontradicted in any particular by them. The testimony objected to suggested a cause of damage too remote, and for this reason we cannot see that its admission prejudiced the defendants with a jury of the intelligence we must? assume our juries to possess. If we felt constrained to grant a new trial to the defendants for the admission of this evidence, we would feel constrained to restrict it to the first issue only. Bull v. Railroad, 149 N. C., 427; Reeves v. Railroad, 149 N. C., 244; Spence v. Canal Co., 150 N. C., 160; Gaither v. Carpenter, 143 N. C., 240; Smith v. Lumber Co., 142 N. C., 26; Hosiery Co. v. Cotton Mills, 140 N. C., 452; Cherry v. Canal Co., 140 N. C., 422; Jennings v. Hinton, 128 N. C., 214; Clark v. Moore, 126 N. C., 1. As we have reached the conclusion that no reversible error was committed in the trial of this action, the judgment of the court is

Affirmed.