#### R. B. NORRIS v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 4 May, 1910.)

1. Railroads — Walkways — Duty of Pedestrians — Negligence — Warnings.

A person who travels a highway close to a railroad track and in sueli a position that the approach of a train should be adverted to in the exercise of reasonable care for his own safety, or who is on the track which travelers are habitually accustomed to use *506as a walkway, lias a right to rely, to some extent and under some conditions, upon signals and warnings usually given by trains at nearby public crossings where-they are'ordinarily required to be given; and a failure of the agents or employees operating defendant’s train to give proper signals at such places is ordinarily evidence of negligence, and under some circumstances actionable negligence may be inferred by the jury.

2. Same — Questions for Jury.

When there is evidence tending to show that the employees of defendant company were running an engine and tender backward in the night-time at a very high rate of speed through a thickly settled community where large numbers of people were habitually accustomed to use the track for a walkway, giving no- signals or other warnings at public crossings, and with just a lantern on the tender throwing light along the track a distance of only 10 or 15 feet, there is an indication that the conduct of defendant’s employees was more than likely to result in a collision by the tender with a pedestrian; and when it is shown that a person sitting on tne track has be'en hurt in consequence and as a result of such conduct of defendant, it is sufficient evidence to take the case to the jury upon the question of defendant’s actionable negligence.

3. Railroads — Walkways — Duty of Pedestrians — Negligence'— Warnings — Evidence.

When there is evidence that plaintiff was injured while attempting to save his companion from injury, caused by defendant’s negligently running its engine and tender backward, in the night-time, without customary signals and warning, and with only a lantern in front of its tender which threw a light along the track a distance of only 10 or 15 feet, and under circumstances and conditions where the injury would likely result, his evidence, “I saw the light far enough off to have saved my companion and myself, but did not know it was a train, and heard no bell or whistle, the train running very fast with little noise; when I saw the light and heard the whistle, I was standing near the end of the cross-ties; I called my companion; he did not notice me, and I jumped across and pulled him off,” is not construed to mean that the light was adequate or at all sufficient to warn him that an engine was approaching, in time to have safely avoided the injury received by him.

4. Railroads — Negligence—Peril of Another — Contributory Negligence — Nonsuit.

When a life of a 'human being is suddenly subjected to imminent peril through another's negligence, either a comrade or a bystander may attempt to save it, and his conduct is not subjected to the same exacting rules which obtain under ordinary conditions; and when the evidence tends to show that plaintiff and his comrade were suddenly subjected to' imminent peril by the defendant’s employees negligently running its engine and tender at night, and that plaintiff, without sufficient forewarning of the approach of the engine and tender, attempted to rescue his companion and was injured by defendant’s negligence, it is not sufficient evidence of contributory negligence on plaintiff’s part to justify a judgment of nonsuit.

*507Appeal from W. B. Allen, J., at November Term, 1909, of IÍARNETT.

There was evidence on the part of plaintiff which tended to show.that on the night of 4 June, 1906, plaintiff, with a comrade, one J. H. Stewart, left the village of Benson, a station on defendant’s road, and were walking along the track towards Dunn; that they left Benson about 10 :30 P. M., just after the regular train had passed, and at a point about 2% miles from Benson, Stewart said, “Let’s rest,” and sat down on a cross-tie with his head a little dropped; that while Stewart was so placed, and plaintiff was standing across the track near the ties, an engine and tender of defendant company approached, the tender being in front as it was moving; that the engine was off schedule, going down the road to relieve a passenger train, which had been disabled and was waiting on the track some distance away; it had a lantern in front of the tender, which gave light, throwing a light on the track for 10 or 15 feet in front as it was moving; that there were several public crossings back of them, one of them a very much used crossing about 250 yards away and another 245 yards ahead; there were also t>vo whistle-posts near, the point being in vicinity of Mingo, another station on the road; that when plaintiff realized it was a train, he called to Stewart, and then jumped across the track to pull him off, and, in the effort to save him, they were struck by the engine and Stewart was killed and plaintiff badly injured; that it was a thickly settled community where people were much- accustomed to use the track, and the engine approached running very rapidly and without giving any signals.

Plaintiff testified that he saw the light on the tender in time to have saved Stewart, but did not realize it was a train till he called.

There was a signed statement by plaintiff, introduced by defendant, which had been made shortly after the occurrence, and tending, in some respects, to contradict his statement.

Some of the evidence pertinent to the issues is set out in the • record as follows: Plaintiff testified:

“I and J. H. Stewart were coming.from Benson on 4 June, 1906. We left Benson about 10 :30 at night and traveled 3 or 31/> miles. We left after the shoofly and traveled on the railroad. Stewart sat down and said, ‘Let’s rest.’ We had passed several crossings. Stewart sat down near a footpath, on the right side, on the end of a cross-tie, with his head a little dropped. I was standing on the east side of the track, at the end of the cross-tie. I saw a light and heard a train. Stewart did not notice it, and I jumped and caught him, and the *508train knocked me loose. I thought it was a box car in front, or an engine and tender running backwards. The light showed to be like a lantern; it threw a light 10 or-15 feet in front. I could see the light a good ways off; it was dim. I saw the light far enough off to have saved Stewart and myself, but did not know it was a train, and heard no bell or whistle. The train made very little noise and was running very fast. Everybody travels the railroad, night and day. It is a thickly settled community. - All use it as a public footpath. There is a crossing 250 yards back toward Benson, and in front about 245 yards. "We were 180 steps from a whistle-post. Cannot tell what happened for a short time after I was struck; part of the time I was sensible and part of the time not.”

And on cross-examination, the witness said:

“I had taken one drink. I saw Stewart take one drink. He appeared sober. I had a pint of whiskey with me; took one drink on the way. It took us 40 or 45 minutes to go from Benson to the place where I was hurt. "When I saw the light and heard the train, I was standing near the end of the ties. I called to Stewart; he did not notice me, and I jumped across to pull him off. I do not know whether or not the train struck Stewart. I was under the influence of drug when I signed paper for "W. H. Pope. I get about same wages I did before.”

Jesse McLamb, witness for plaintiff, testified as follows:

“I live between Dunn and Benson. I was going home from McLamb’s; had been taking some bee-gums. The shoofly passed, and we started honré. I was in some 50 yards of home and heard the roar of the train; it was going backwards; had a glimmer of light. I heard no whistle or bell. As I got home a clock struck 11. The train was going mighty fast — as fast as I ever saw one run. There is a public crossing before you get to the trestle, another after you pass, and at my house still another. Stewart’s body was 200 or 300 yards from crossing at my house. Went to see Norris in two or three weeks; he was in bed and seemed to be suffering. People walk-the railroad more than the county road. The community is thickly settled; has been so used ever since built, thirty years or more. There is a great deal of foot travel along this part of the track, both day and night.” .

W. L. Stewart testified:

“Got to railroad and saw glimmering light; it was very little, and I took it to be a switch light. Almost by the time I got off the track the train passed; no whistle or bell. It looked like an engine and tender running backwards, and was running very fast. The railroad is traveled a great deal, day and night, by *509pedestrians. Saw Norris next morning; did not appear to know anything. He was suffering; he was feeble a long time. There are two whistle-posts near the place the injury occurred. The nearest crossing is 200 or 300 yards towards Benson and is used a great deal by the public.”

Nazro Stewart, witness for plaintiff, gave substantially the same testimony as W. L. Stewart, and said he “saw a dim light that looked about like a star; that train consisted of an engine, running backwards, with tender in front; no whistle or bell sounded;'train making very little noise, and was running very fast. We hardly had time to clear the track before it passed. This part of track is used a great deal by the public as a foot-way.”

J. A. Stewart, witness for plaintiff, testified:

“There has been a crossing near this place since I can' remember. Railroad is used as a footpath; thickly populated community, and the railroad is used as a footway a great deal, both day and night.”

A. "W. Stewart, witness for plaintiff, testified:

“I was sitting on my piazza, 150 yards from railroad, about 11 o’clock at night. Engine and tender passed, running back-, wards; it had a little light in front; was running very fast; heard no signals. The train was running as fast as I ever saw one.”

Among other witnesses for defendant, Captain Bullock testified :

“I was engineer on engine and tender; was running as a second section of 31, and 20 minutes behind it at Benson. Shoofly left Benson at about 11:15. We were running 20 miles an hour. Six trains passed this point that night. I saw no one. We had a headlight on rear and lantern on tender, running backward. I tried to. ring bell at all crossings and blow whistle; cannot say positively as to this one. It was equipped as engines usually are when running backward. I was going to Wade, N. C., to the relief of a.through passenger train which was disabled and waiting.”

And Captain Howie, witness for defendant, testified:

“I was conductor on this train. • We did not make schedule on account of running backward. (Testimony as to equipment same as witness Bullock.) We were going to Wade, N. C., to the relief of a through passenger train which was disabled and waiting. I told Captain Goodrich, the section master, that we came near striking some people that night, as I saw some persons right close to the track. We were running fast, but I cannot say how many miles per hour; cannot say as to whether signals' were, given for crossings.”

*510The jury rendered the following verdict:

“1. Was the plaintiff injured by the negligence of the defendant? Answer: Yes.

“2. Did the plaintiff, by his own negligence, contribute to his own injury? Answer: No.

“3. What damage is the plaintiff entitled to recover? Answer: $1,500.”

Judgment for plaintiff, and defendant excepted and appealed, assigning for error the refusal of the court to dismiss as on judgment of nonsuit. •

R. L. Godwin and E. F. 7oung for plaintiff.

J. 0. Clifford for defendant.

Hoke, J.,

after stating the case: It has been repeatedly held with us that where a person is traveling along a highway, so close to a railroad track and in such a position that the approach of a train should be adverted to, in the exercise of reasonable care for his own safety, or where a person is on the track, at a place where travelers are habitually accustomed to use the same for a walkway, they have a right to rely, to some extent and under some conditions, upon the signals and warnings- to be given by trains at public crossings and other points where such signals are usually and ordinarily required, and that a failure on the part of the company’s agents and employees operating its train to give proper signals, at such points is ordinarily evidence of negligence; and where such failure is the proximate cause of an injury it is, under some circumstances, evidence from which actionable negligence may be inferred.

An instance of the first proposition will be found in the case of Randall v. R. R., 104 N. C., 410, where plaintiff was driving an ox team at a point very near the track, importing menace to the safety of the team, and where an injury in fact resulted, and testified that he would-not have driven the team into the dangerous place if he had been properly and adequately warned by the signal whistle at the station or crossing some distance ahead. In that case, as relevant to the question presented, the facts and the legal principle applicable are summarized and stated by Associate Jusiice Avery, delivering the opinion, as follows :

“The train passed at an unusual hour along a narrow canyon, where the wagon road ran, at some points, close beside defendant’s track, and, at others, diverged a little distance from it.

The plaintiff had passed the station and then gone over a crossing, near which the wagon road, for a very short distance, was located in the narrow space between the mountain and the *511track, wbeñ be beard a slight blow from tbe engine, and, almost immediately, it passed around a curve on tbe mountain, only 60 or 70 yards ahead of him, and tbe noise and blazing bead-light so frightened tbe oxen that, in attempting to get out of tbe way, three of them jumped upon tbe track and were killed. This occurred less than six months before tbe action was brought.

“Tbe plaintiff further testified that, if tbe regular station blow, or the crossing blow, bad been given at tbe usual point, be could have stopped bis oxen behind a large pile of wood before be reached tbe narrow place, and could have saved them, but that because tbe blow was not given, be bad advanced to tbe place where on tbe one side was tbe steep mountain and on tbe other tbe track of tbe railroad company. Tbe engineer testified that be blew tbe station blow, and as loud as usual, and at tbe usual place. On tbe decision of tbe issue of fact thus raised tbe whole controversy depends. Troy v. R. R., 99 N. C., 298.

> “When a person in charge of a wagon and team approaches' a public crossing it is bis duty to look and listen and take every prudent precaution to avoid a collision, even though tbe approach be made at an hour when no regular train is expected to pass. Tbe same degree of care and caution should be exercised by one who is about to drive into such a narrow and dangerous pass as is described by tbe witnesses, if be would avoid tbe responsibility for any injury that may result from bis carelessness. .But it is tbe duty of tbe engineer to blow tbe whistle or ring tbe bell at a reasonable distance from such a crossing as was described by tbe witnesses, in order to give warning to travelers on tbe ordinary highway running across and near it, and enable them to guard against danger. It is always required of an engineer, if be would relieve the company from liability for negligence, to blow tbe whistle, as a warning, at a reasonable distance from the crossing.of a public highway, or a station, which bis train is approaching, and is doubly important where tbe track winds around curves, between a mountain and river, by tbe side of a public road; and, if travelers on such highway are subjected to loss by injury to their live stock at a crossing or narrow pass like that described by tbe witnesses, in consequence of bis failure to give such warning as they bad a right to expect, tbe company is liable in damages for such negligence. 2 Wood’s E. L., p. 323; Kelly v. St. Paul and C. R. R. Co., 29 Minn., 1; L. C. and C. R. R. Co. v. Garty, 79 Ky., 442; Penn. Co. v. Krick, 47 Ind., 368; Pittsburg and C. R. R. Co. v. Jundt, 3 Am., and Eng. R. Cases, 502; Strong v. S. and C. R. R. Co., 61 Cal., 326; Hoar v. C. R. and C. R. R. Co., 47 Mich., 401; Troy v. R. R. Co., supra.”

*512And the second position suggested is sustained in the well-considered opinion of Mr. Justice Walicer, in Morrow v. R. R., 147 N. C., 623, in which it was held:

> “1. 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.”

And-delivering the opinion, Judge Walker said:

> “But the fact that no such warning was given, while not negligence per se as to the pedestrian using the track for his own convenience, may be evidence of negligence as to him in the operation of the train, when it is run in the night-time without a headlight, and prudence requires a warning to be given. There was evidence in this case that the plaintiff, when he 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 so dark that he could not see it in time to leave the track.”

And the general principle has been frequently upheld in other cases. Hinkle v. R. R., 109 N. C., 472; Troy v. R. R., 99 N. C., 298.

Applying, then, the doctrine as it obtains with us, we are clearly of opinion that it was a negligent act to run an engine and tender backwards in the night-time at a very high rate of speed, through a thickly settled community where large, numbers of people were habitually accustomed to use the track for a walkway, giving no signals or other warnings at public crossings, and with just a lantern in front of the tender- as it was moving, throwing light along the track for a distance of only 10 or 15 feet. It was conduct that was more than likely to result in a collision, and, when it was shown as a result of such conduct that a person sitting on the track has been hurt, we think that actionable negligence against the company could very well be inferred.

It was suggested that the evidence showed that there was a sufficient light in front of the tender, because the plaintiff himself testified “that he saw the light a good ways off, and far enough to have saved Stewart”; but it is no fair deduction from this excerpt that the witness intended to say that the light was adequate or at all sufficient to warn him that an engine was approaching, or that an injury was likely; on the contrary, and by correct inference, a perusal of the testimony of the witness justifies the interpretation that he saw the light some distance off, but that no signals or warnings having been given, and very *513little noise baying been made by tbe single engine and tender, tbe witness did not realize, and bad no good reason to suppose, it was a train importing serious danger, until it was very near; and, as soon as be did realize tbis, be called to bis comrade and tben jumped to save bim. Here is tbe entire statement of tbe witness relevant to tbis suggestion:

> “Stewart sat down and said, Net’s rest.’ We bad passed several crossing's. Stewart sat down near a footpath on tbe right side, on tbe end of a cross-tie, with bis head a little dropped. I was standing on tbe east side of tbe track, at tbe end of tbe cross-tie. I saw a light and beard tbe train. Stewart did not notice it, and I jumped and caught bim, and tbe train knocked me loose. I thought it was a box car in front, or an engine and tender running backwards. The light showed to be like a lantern ; it threw a light 10 or 15 feet in front-. I could See tbe light a good ways off; it was dim. I saw tbe light far enough off to have saved Stewart and myself, but did not know it was a train, and beard no bell or whistle. Tbe train made very little noise and was running very fast.” And on cross-examination: “When I saw tbe light and beard tbe train, I was standing near tbe end of tbe ties. I called to Stewart; be did not notice me, and I jumped across to pull bim off.”

There is no claim on tbe part of tbe defendant that tbe usual signals were given on tbis occasion; Captain Bullock, tbe engineer, testifying for defendant in reference to tbis question, said: “I tried to ring bell at all crossings and blow whistle; cannot say positively as to tbis one.”

And Captain Howie, tbe conductor, said: “We were running fast, but I cannot say bow many miles per hour; cannot say as to whether signals were given for crossings.”

And, under tbe authorities heretofore cited, and others of like bind, we think that tbis failure to give tbe usual signals, with tbe absence of sufficient light to afford anything like adequate notice of tbe approach of tbe engine, in connection with tbe other facts heretofore stated, resulting in tbe killing of one man and tbe serious injury of another, made a case from which tbe jury were well warranted in rendering a verdict against defendant on tbe first issue.

Tbis being true, it is well established that when tbe life of a human being is suddenly subjected to imminent peril through another’s negligence, either a comrade or a bystander may attempt to save it, and his conduct is not subjected to the same exacting rules which obtain under ordinary conditions; nor should contributory negligence on the part of tbe imperiled person be allowed, as a rule, to affect the question. It is always *514required in order to establish responsibility on the part of defendant, that the company should have been in fault, but, when this is established, the issue is then between the claimant and the company; and when one sees his fellow-man in such peril he is not required to pause and calculate as to court decisions, nor recall the last statute as to the burden of proof, but he is allowed to follow the promptings of a generous nature and extend the help which the occasion requires; and his efforts will not be imputed to him for wrong, according to some of the decisions, unless his conduct is rash to the degree of recklessness; and all of them hold that full allowance must be made for the emergency presented.

This principle is declared and sustained in many well-considered and authoritative decisions of the courts and by approved text-writers, and prevails without exception, so far as we have examined. Eckert v. R. R., 43 N. Y., 502; Corbin v. City of Phil., 195 Pa. St., 461; Md. Steele Co. v. Marriers, 88 Md., 482; Pa. Co. v. Langendorf, 48 Ohio State, 316; Mobile and Ohio R. R. v. Ridley, 114 Tenn., 727; Taylor v. Parsons, 122 Iowa, 679; Henry v. R. R., 67 Fed., 426; Shearman and Redfield (5 Ed.), sec. 85.

In Eckert’s case, supra, it was said:

> “The law has so high a regard for human life that it will not impute negligence in an effort to preserve it, unless made under circumstances constituting rashness in the judgment of prudent persons.”

In Pa. Co. v. Langendorf, supra, it was held:

> “1. It is not negligence per se for one to voluntarily risk his own safety or life in attempting to rescue another from impending danger. The question whether one so acting should be charged with contributory negligence in an action brought by him to recover damages for injuries received in attempting the rescue, is one of mixed law and fact, and should be submitted to the jury upon the evidence, with jtroper instructions from the court.

> “2. While one who rashly and unnecessarily exposes himself to danger cannot recover damages for injuries thus brought on himself, yet, where another is in great and imminent danger, one who attempts a rescue may be warranted by surrounding circumstances in exposing his limbs or life to a very high degree of danger; and in such cases he should not be charged with the consequences of errors of judgment resulting from the excitement and confusion of the moment.”

In R. R. v. Ridley, supra, the same doctrine is thus stated:

> “2. It is not only lawful, but a laudable act, to attempt to *515save human life wben it is imperiled by great danger, and in a sudden emergency, and in sucb cases tbe courts will not require tbe intending rescuer to stop, hesitate, and weigh probabilities until it is too late to make tbe rescue, but it is sufficient if be acts with sucb care as a reasonably prudent and careful person would.use in sucb emergencies and under similar environments.

> “3. Where a person, acting in a sudden emergency and using sucb care as a reasonably prudent and careful person would use in sucb emergencies and under similar environments, loses bis life in attempting to save tbe life of another in imminent danger from tbe wrongful, careless, and negligent act or conduct of tbe defendant, be is not guilty' of sucb contributory negligence as will bar a recovery for bis wrongful death.”

In Shearman and Redfield, sec. 85, tbe author well says:

> “Tbe plaintiff’s right to recover is not affected by bis having contributed to bis injury, unless be is in fault in so doing. It is possible for tbe plaintiff not only to contribute to bis own injury, but even to be himself its immediate cause, and yet to recover compensation therefor. Thus, be has a right to assume some risk of personal injury, wben necessary to escape a greater risk. So, one who, seeing bis property imperiled, hastens to protect it, and in doing so imperils bis own person, is not necessarily deprived of bis remedy thereby. It is bis right and duty to protect bis own property, so long as be can do so without recklessly exposing himself to injury. One who imperils bis own life for tbe sake of rescuing another from imminent danger is not chargeable, as matter of law, with contributory negligence; and, if tbe life of tbe rescued person was endangered by tbe defendant’s negligence, tbe rescuer may recover for tbe injuries which be suffered from tbe defendant in consequence of bis intervention. There need be no fear that this principle will make any one liable for tbe cost of volunteered benevolence, without being himself in fault. No one is liable at all, unless be is in fault.”

Applying this principle to tbe facts presented, there was certainly no error to defendant’s prejudice in submitting tbe question of contributory negligence on part of plaintiff to tbe jury, and tbe learned judge correctly held that, on tbe entire evidence, defendant’s motion to nonsuit should be denied.

Tbe authorities cited and relied on by tbe defendant are chiefly cases involving tbe proposition as to wben and under what circumstances the employees of a railroad are required to stop its train in order to avoid a collision, and have no application here; for no sucb requirement was imposed on tbe company. In tbe present case responsibility on tbe first issue has *516been fixed on defendant, because of a breach of duty, on the part of its agents and employees, in running an engine backwards in the night-time, through a thickly settled community, at a high rate of speed, without any signals given at the usual places, and without adequate lights to warn one of its approach.

There is no error, and the judgment below is

Affirmed.