#### CHARLES EDGE v. ATLANTIC COAST LINE RAILWAY COMPANY.

(Filed 19 October, 1910.)

1. Contributory Negligence — Proximate Cause — Last Clear Chance —Railroads.

In an action for damages against a railroad for personal injuries, held, contributory negligence for an employee in going along a path crossing railroad tracks to go between and under cars standing on a live track and giving indications that they might at any time be moved from their placing.

2. Contributory Negligence — Proximate Cause — Last Clear Chance —Railroads.

In such case, however, the negligence of the plaintiff is not the proximate cause unless it continues to the time of the injury complained of, and it is the defendant’s duty, notwithstanding plaintiff’s previous negligent act, to observe that degree of care required by the doctrine of the last clear chance when through its agents it knew or should have perceived, by keeping a proper lookout, that plaintiff was in such a position of danger or peril that ordinary effort on his own part would not avail to save him.

3. Same — Evidence—Nonsuit.

Upon a motion to nonsuit upon the evidence, in an action to-recover damages for personal injury against a railroad, the evidence of plaintiff should be taken as true and accepted in the light most favorable to him; and when it appears therefrom, upon the doctrine of the last clear chance, that notwithstanding the negligent act of plaintiff, defendant’s engineer saw his danger, that “he was looking straight at me” and afterwards, that “he was looking toward me with his cap pulled down in front of his face,” the latter testimony will not be taken to mean necessarily that the engineer’s view was obstructed so that he could not see the plaintiff, and the cause should be submitted under the doctrine of the last clear chance and the principles applicable.

4. Same.

In his action against a railroad for damages for personal injury, it appeared that plaintiff was a “handy man” or messenger in defendant’s railroad yard, and in the course of his employment was directed to bring some articles from another part of the yard in a hurry; in doing this it was necessary for him to cross defendant’s tracks, and on one of them was a detached engine, and eighteen box cars, and the engineer was looking out of the cab window with a plain and unobstructed view, and plaintiff en*213deavored to go between tbe cars, under tbe bumpers, when tbe engine was backed upon the cars, producing tbe injury. There was evidence by plaintiff, that, at the time, tbe engineer was looking right at him, and, he then testified, “that be was looking towards him with bis cap pulled down in front of bis face.” Held, sufficient to be submitted to tbe jury upon tbe issue of tbe last clear chance, and that a motion as of nonsuit upon tbe evidence. should not be granted.

Appeal from Quion, J., at tbe April Term, 1910, of Edge-combe.

Civil action to recover damages for physical injury caused by alleged negligence on part of defendant company.

On motion at tbe close of plaintiffs testimony, there was judgment of nonsuit, and plaintiff excepted and appealed.

T. T. Thorne, Q-. M. T. Fountain & Bon for plaintiff.

F. 8. Spruill, J. L. Bridgers for defendant.

Hoke, J.

There was allegation with testimony on part of plaintiff tending to show that on or about 28 September, 1908, plaintiff was in employ of defendant company on its yards at South Eocky Mount, N. C., as “handy man or messenger,” and in the line of his duty was sent by his foreman or boss, with urgent directions to hurry, to the storeroom or roundhouse of defendant with a requisition for a keg of nuts or bolts. • The path to the roundhouse led over the tracks of defendant company and on one of these tracks and across the path was a line of box cars, 18 in number, coupled together, five of them being towards a switching engine, detached and some ten feet ahead. That as plaintiff approached, this engine was standing still with a little smoke showing, with a man in the cab, looking towards plaintiff. That plaintiff, as he came to the train of cars, attempted to pass under the drawheads of the cars across the path, and while he was in this position “of peril,” the switching engine, without signal or warning of any kind, backed against the cars, shovipg them along about half a car length and causing serious injury to plaintiff. So far as appears there was nothing to obstruct the view, and, speaking more directly to the question presented, the plaintiff testified: “There was a line of box cars, *214about 18, across tbe path leading to tbe roundhouse, and I looked towards tbe engine to see if I saw any one. Tbe engine was not connected witb tbe ears, but about 10 feet ahead of them standing still, etc. I was walking along whistling — saw a man sitting in tbe window of tbe engine, be bad bis bead right towards me, and afterwards I got between tbe cars going on towards tbe other side when tbe engine struck tbe cars and knocked me,” etc. And again, “Don’t know tbe engineer. He was looking towards me witb bis cap pulled down in front of bis face; I did not bear any signal at all,” etc. “When tbe cars struck I was crawling under tbe drawbeads between tbe cars.”

On this testimony, or on facts of similar import, we have held in tbe case of Beck v. R. R., 149 N. C., p. 168, “That it was a negligent act on tbe part of plaintiff in endeavoring to pass between these cars standing as they were on a live track and witb an engine sufficiently near as to make its approach probable and such conduct would bar a recovery unless after tbe peril was developed there was a negligent failure on tbe part of defendant company to avail itself of tbe last clear chance to avoid tbe injury. In such case tbe prior negligence of plaintiff would not be contributory because it would not be tbe proximate or concurrent cause of tbe injury. Speaking to this question in Sawyer’s case, 145 N. C., p. 29, tbe Court said: “A negligent act of tbe plaintiff does not become contributory unless tbe proximate cause of tbe injury; and, although tbe plaintiff, in going on tbe track, may have been negligent, when be was struck down and rendered unconscious by a bolt of lightning bis conduct as to what transpired after that time was no longer a factor in tbe occurrence, and, as all tbe negligence imputed to defendant on tbe first issue arose after plaintiff was down and helpless, tbe responsibility of defendant attached because it negligently failed to avail itself of tbe last clear chance to avoid tbe injury; so its negligence became tbe sole proximate cause of tbe injury; and tbe act of tbe plaintiff in going on tbe track, even though negligent in tbe first instance, became only tbe remote and not tbe proximate or concurrent cause.” And on this doctrine of tbe last clear chance, in tbe recent case of Snipes v. Manufacturing Co., 152 N. C., pp. 42 and 46, this Court said: “Ordinarily, *215eases calling for application of tbe doctrine indicated arise when tbe injured person was down on tbe track, apparently unconscious or helpless, as in Sawyer’s case, just referred to, or in Pickett’s case, 117 N. C., 616, or in Dean’s case, 107 N. C., 687; but sucb extreme conditions are not at all essential, and tbe ruling should prevail whenever an engineer operating a railroad train does or, in proper performance of bis duty, should observe that a collision is not improbable, and that a person is in sucb a position of peril, that ordinary effort on bis part will not likely avail to save him from injury; and tbe authorities are also to tbe effect that an engineer in sucb circumstances should resolve doubts in favor of tbe safer course.”

This doctrine, here termed and referred to as tbe last clear chance, meaning responsibility arising by reason of a negligent failure of a defendant to avail himself of tbe last clear chance of avoiding tbe injury, is very firmly implanted in our law and tbe duty and tbe breach of it, upon which it is properly made to rest, has been illustrated and applied in many recent decisions of tbe Court, as in Farris’ case, 151 N. C., pp. 483, 491; Lassiter’s case, 133 N. C., pp. 244, 247; Arrowood’s case, 126 N. C., pp. 629, 362; Powell’s case, 125 N. C., p. 374; Purnell’s case, 122 N. C., p. 832; Stanley’s case, 120 N. C., p. 514; Lloyd’s case, 118 N. C., p. 1010; Deans’ case, 107 N. C., 687; Bullock’s case, 105 N. C., pp. 180, 198.

Thus in tbe well considered case of Farris, Administrator, v. the R. R., where a railroad company bad negligently killed an employee who was walking along tbe track about tbe place of a yard crossing, and who bad grabbed for bis bat, which bad suddenly blown from bis bead on or towards tbe track and causing tbe employee to grab for tbe bat and thus expose himself to danger, Associate Justice Manning delivering tbe opinion, and, in reference to tbe question we are discussing, said: “Tbe defendants objected to bis Honor’s submitting tbe third issue— that issue presenting tbe “last clear chance.” While this issue has become immaterial, in view of tbe finding of the jury on £he first and second issues, we think it was proper for bis Honor to have submitted it. If tbe jury bad found with defendants on tbe second issue, having found tbe first issue with plaintiff, the *216ultimate liability o£ defendants would have been determined by tbeir finding on tbe third issue. In tbe presence of tbe concurring negligence of a plaintiff and a defendant, it is a generally accepted doctrine, and well settled in this State, that tbe ultimate liability must depend upon whether tbe defendant could at tbe time have avoided tbe injury by tbe exercise of reasonable care, under tbe attendant circumstances. Ray v. R. R., 141 N. C., 84; Read v. R. R., 140 N. C., 146; Lassiter v. R. R., 133 N. C., 244; Arrowood v. R. R., 126 N. C., 629; Pickett v. R. R., 117 N. C., 616.” In LassitePs case, supra, a railroad conductor of a freight train, in tbe performance of bis duty on a railroad yard bad negligently stepped up on a side track where some shifting was going on, and was run over by a shifting engine pushing some cars backwards on tbe side track referred to, and it appeared that tbe engineer on tbe cab could not bave seen tbe conductor, and there was no one in position to keep a lookout, and there was no evidence that tbe bell was not ringing or tbe whistle not sounding, and it was held to be an issue on tbe last clear chance; and Associate Justice Montgomery, in tbe opinion, said: “It is tbe duty of railroad companies to keep a reasonable lookout on moving trains. When Thomason saw tbe intestate step up on tbe side track tbe end of tbe box car attached to tbe shifting engine was twenty steps from him and tbe cars were moving at tbe rate of four miles an hour. Tbe same witness said that tbe intestate bad time to bave gotten off if be bad beard tbe witness when be hallooed to him. That evidence was competent and fit to bave been submitted to tbe jury upon tbe question of tbe last clear chance of tbe defendant — that is, whether if both tbe plaintiff and tbe defendant bad been negligent tbe defendant could bave prevented tbe death of tbe intestate by tbe use of means at band or that reasonably ought to bave been at band.” In Pickett v. R. R., 117 N. C., 616; 53 Am. St. Rep., 611; 30 L. R. A., 257, tbe Court said: “If it is a settled law of North Carolina (as we bave shown) that it is tbe duty of an engineer on a moving train to maintain a reasonable vigilant outlook along tbe track in bis front, then tbe failure to do so is tbe omission of a legal duty. If, by tbe performance of that duty, an accident might bave been averted, notwitbstand-*217ing tbe .previous negligence of another, then, under tbe doctrine of Davies v. Mann and Gunter v. Wicker, tbe breach of duty was tbe proximate cause of any injury growing out of such accident, and when it is a proximate cause tbe company is liable to respond in damages. Having adopted tbe principle that tbe one whose duty it is to see does see, we must follow it to its logical results.” In Arrowood v. R. R., 126 N. C., 629, tbe Court said: “Tbe duty of keeping a lookout is on tbe defendant. If it can keep a proper lookout by means of tbe engineer alone, well and good. If for any reason a proper lookout cannot be kept without tbe aid of a fireman, be also should be used. If by reason a proper lookout cannot be kept without tbe aid of a fireman, be ought also to be used. If by reason of their duties either tbe fireman or tbe engineer, or both, are so hindered that a proper lookout cannot be kept, then it is tbe duty of tbe defendant at such places on its road to have a third man employed for that indispensable duty.” Tbe same doctrine was announced in Jeffries v. R. R., 129 N. C., 236; Bradley v. R. R., 126 N. C., 741, and Pharr v. R. R., 119 N. C., 756.

In Dowell’s case, tbe present Chief Justice said: “There was also evidence tending to show that tbe engineer with a proper lookout might have seen tbe deceased. Tbe fact that tbe engineer, sitting on tbe rigbtband side of tbe cab on a moonlight night, did not know till two days thereafter that bis engine bad knocked a man off on tbe side of tbe track (as tbe verdict finds), is itself some evidence to be considered upon tbe question whether there was a negligent lookout, especially taken in connection with tbe plaintiff’s evidence that tbe train was running from twenty-five to thirty-five miles an hour at night, and sounding no whistle at public crossings.”

In Sawyer’s case, supra, tbe Court spoke of tbe duty and tbe reason for it as follows: “And it is well established that tbe employees of a railroad company engaged in operating its trains are required to keep a careful and continuous outlook along tbe track, and tbe company is responsible for injuries resulting as tbe proximate consequence of their negligence in tbe performance of this duty. Bullock’s case, 105 N. C., 180; Dean’s case, 107 N. C., 686; Pickett’s case, 117 N. C., 617. This particular *218duty arises not so mueb from tbe fact that- railroad companies are common carriers or quasi public corporations, as from the high degree of care imposed upon them on account of the dangerous agencies and implements employed and the great probability that serious, and in many instances fatal, injuries are almost certain to result in case of collision. As said by Bwrwell, Judge, in Haynes v. Gas Co., “The utmost degree of care, so far as skill and human foresight can go, is required, for the reason that a neglect of duty is likely to result in great bodily harm and sometimes in death to those who are compelled to use that means of conveyance.” And quoting from Ray on Negligence, page 53, “As a result of the least negligence may be of so fatal a nature, the duty of vigilance on the part of the carrier requires the exercise of that amount of care and skill in order to prevent accidents.”

It will be noted from these citations, and many others could be made, that the doctrine we are discussing is called for, notwithstanding the previous negligent conduct of the person injured, and its application is frequently permissible, not only when the perilous position of such person is observed, but when it should or might have been observed by the exercise of proper care. Considering, then, the duty imposed by the law upon defendant’s engineers to keep a careful outlook along the track, and to observe and note conditions which threaten a collision, and mindful of the principles embodied in the doctrine of the last clear chance, we are of opinion that there was error committed in directing a nonsuit in this ease. According to plaintiff’s testimony, and as the case is now presented, under repeated decisions of the Court, we are to accept this as true and construe it in the light most favorable to him, the engine was, at most, not over 150 or 160 feet from the crossing; there was a clear and unobstructed view along the track and plaintiff’s approach to it. The plaintiff himself testified that the man in the cab, after-wards spoken of as the engineer, was looking right at him as he went up to the train, for it is no fair, certainly no necessary, interpretation of the testimony of this witness, “That the engineer was looking towards me with his cap pulled down in front of his face;” that the witness intended to convey the impression that *219the line of vision was shut off. The witness’ first statement was that he “saw a man sitting in the cab with his head right towards me,” and a perusal of the entire statement of the witness permits the construction that the engineer saw or could have seen him as he went up to the train. And in view of all the facts and attendant circumstances, we think the plaintiff is entitled to have the cause submitted to the jury on an issue as to the defendant’s negligence and on the question whether there was a negligent breach of duty on the part of defendant’s engineer in failing to observe and note the position of peril in which the plaintiff was placed or had placed himself and in moving his engine against the cars when plaintiff was in that position. Whether he knew of the dangerous position of plaintiff or in the exercise of the care and duty incumbent upon him, he should have known it, and was guilty of a negligent act, the proximate cause of the injury, in running his engine against the cars at the time when it was done. It is no sufficient answer to the view we take of this evidence, and the inferences permissible from it, to suggest that the engineer was not required to suppose that a man standing by the train was going to dive under the cars, or that this may have been done so suddenly that the engineer, with his hand on the throttle, could not have seen or realized plaintiff’s position in time to have saved him. On the contrary, there is testimony on the part of plaintiff which tends to show that moving along the path in the performance of a duty which required him to go to another part of the yard, plaintiff approached the train in full view of defendant’s engineer, and seeing that the engine was detached and having been urged to hurry, he endeavored to pass under the cars which were across the path and blocking his way, when defendant’s engineer, without signal or warning, moved his engine against the cars, causing plaintiff’s hurt. The inferences of fact to be drawn from this testimony are for the jury and they alone must determine them, unaffected by the comments of the court, but, considered in its legal aspect, the evidence referred to permits the construction that the engineer saw the plaintiff when he endeavored to pass under the cars and certainly when viewed in reference to the duty imposed by the law upon the engineer or his assistants *220to keep a constant and continuous outlook along tbe track in tbe direction in wbicb they intend to move, it is a fair inference tbat tbey would bave seen plaintiff if tbey bad been in tbe proper performance of tbeir imposed duty. A duty nowhere more exigent tban in one of these railroad yards, where tbe employees, in tbe performance of tbeir duties, are required to move from point to point across numbers of tracks, and where tbe shifting of cars is constantly going on. Tbe suggestion referred to as favoring defendant’s position should not be allowed to prevail on this appeal, for if permissible at all on tbe evidence, it is tbe view wbicb makes most strongly for tbe defense, whereas we bave repeatedly held tbat on a motion to nonsuit, tbe “evidence must be construed in tbe view most favorable to tbe plaintiff, and every fact wbicb it tends to prove and wbicb is an essential ingredient of tbe cause of action, must be taken as established, as tbe jury, if tbe case bad been submitted to them, might bave found those facts from tbe testimony.” Walicer, Judge, in Cotton v. R. R., 149 N. C., p. 227. A statement of doctrine affirmed in many decisions of this Court. Deppe v. R. R., 152 N. C., pp. 79, 80; Freeman v. Brown, 151 N. C., p. 111; Biles v. R. R., 139 N. C., p. 528; Brittain v. Westhall, 135 N. C., p. 492; Hopkins v. R. R., 131 N. C., p. 464. There was error in directing a non-suit, and this will be certified tbat tbe judgment may be set aside and tbe cause proceeded with in accordance with law.

Reversed.

BROWN, J.,

dissenting. I think tbe learned judge in tbe Superior Court properly sustained tbe motion to nonsuit, and tbat in doing so be followed tbe decisions of this Court.

Tbe evidence of tbe plaintiff shows him to be a grown man, entirely familiar with conditions necessarily prevailing on tbe defendant’s switching yards. He was a “bandy man” or messenger in tbe round bouse, and was directed by bis boss to take a message to tbe storeroom for supplies. On bis way plaintiff came to a track on wbicb was standing a train of eighteen freight cars. At one end of tbe train was a switching engine under steam plainly engaged in switching and handling these cars.

*221When plaintiff reached this train on bis way to the storeroom, instead of going around tbe end of the train about one hundred feet further, he attempted to pass between the coupled cars in order to reach the other side, and was hurt by the engine backing just at the moment he was crawling under the drawheads.

The principle has been laid down by almost every court in this country and by text-writers, and adhered to with undeviating uniformity, that one who attempts to cross the track between the cars of a train, which he either knows, or might by observation see, is likely to move at any moment, is guilty of such gross negligence, if not recklessness, that he cannot recover if injured. Beach Oont. Neg., 40, 258, and cases cited. R. R. v. Kendrick, 40 Mass., 374; R. R. v. Henderson, 43 Pa. St., 449; R. R. v. Pinchin, 112 Ind.

“It is a danger so immediate and so great that he must not incur it.” Ranch v. Lloyd, 31 Pa. St., 358. In R. R. v. Copeland, 61 Ala., Chief Justice Stone characterizes such an attempt as “negligence bordering on recklessness.” So does the Court of Appeals of Maryland. Lewis v. R. R., 38 Md., 588.

This Court unanimously held in Beck v. R. R., 149 N. C., 168, that “When it appears that plaintiff’s intestate was injured by attempting to go between cars of defendant’s train, on a live track in use, and that he could easily have walked around the train by going ninety feet and have avoided injury, the act constitutes such contributory negligence as bars recovery.”

It must be admitted, as it is manifest from all the authorities, that the engineer owes no duty whatever to keep a lookout for .persons near his train to see if they go in between the cars, and he is not chargeable with negligence for failing to do so. The engineer has a right to assume that a person approaching his train or standing alongside of it will not venture between the ears, an act which has been universally denounced as reckless. If, as plaintiff contends, he was seen by the engineer while he was walking along near the cars, whistling, then the engineer was not required to watch him, on the supposition that he might crawl between the cars on the bumpers. The engineer had the right to assume that, seeing the danger, he would not voluntarily rush into it. Upon exactly the same principle it is held *222that an engineer of a train seeing a man walking ahead on the track, may reasonably expect that he will step off. Beach v. R. R., 148 N. C., 153.

It being thus demonstrated that the engineer owed plaintiff no duty to watch his movements to see if he went between the cars, and had the right to assume that plaintiff- would not attempt so foolhardy and reckless an act, there is only one theory left upon which the engineer or the company can be held liable, and that is that the engineer actually knew that plaintiff was between the cars and in a position of peril at the moment he backed his engine. It is not a question of whether by the exercise of reasonable care and watchfulness the engineer might have known it,’for he was not required to keep a lookout for any such purpose.

In other words, it is contended that the engineer, knowing plaintiff’s perilous position, actually caused the injury by backing the cars on him.

I regret sincerely that a majority of my brethren think that such an inference may be fairly and legitimately drawn from the plaintiff’s testimony. Common humanity forbids that any such imputation should be cast upon the engineer unless the evidence fully warrants it, for if such be true, then not only is the company liable for the damage, but the engineer himself would be guilty of either murder or manslaughter had the plaintiff been killed. The evidence relied upon to support this theory is confined to plaintiff’s own testimony, and is so meagre that I quote it verbatim. Plaintiff stated that, as he approached this train: “I saw the engine standing in front of the cars fixing, to shift them;” I saw a man sitting in the window of the engine, he had his head right toward me, and afterwards I got up between the cars going on towards the other side when the engine struck the cars and knocked me towards the left.”, Again, “I don’t know the engineer. He was looking toward me with his cap pulled down in front of his face. I did not hear any signal at all; if anything blew or rung did not hear it. When cars struck I was crawling under the drawheads between the cars.” This is all the evidence contained in the record relied upon to warrant a recovery.

*223It is not contended that it was the duty of the engineer to blow his whistle or ring his bell for the purpose of keeping persons from going between the cars. And it must be borne in mind that it is not a question as to whether the engineer might by close lookout have seen plaintiff as he started to “crawl under the drawheads between the cars,” for he had a right to assume that no grown man in possession of his faculties would attempt so reckless an act, and he was therefore not required to keep any such lookout.

The question is, does the evidence quoted justly warrant the inference that the engineer knew plaintiff was between the cars, and knowing it, backed his engine against the train and injured him?

It is inconceivable to think that the engineer would have done such a thing, and no such inference is warranted from the mere fact that at one time he was looking “towards plaintiff with his cap pulled down in front of his face.”

My brethren fail entirely to note that plaintiff does not state that the engineer was looking at him when he jumped in between the cars. Plaintiff says that he saw the engineer in the window of his engine with his head towards plaintiff, “and after-wards I got up between the cars going on towards the other side when the engine struck the cars.” How long after he saw the engineer before he entered between the cars plaintiff does not say. The engineer may have been looking towards plaintiff one moment and turned his head the next. He was not required to continue to look towards plaintiff, or he may have looked towards him and yet never have noticed him. The engineer may have been looking towards plaintiff and he may have seen him approaching the train, but that is no evidence he saw him dive between the cars.

In fact our observation teaches us that an engineer in his seat in the cab cannot see a man half way down his train go between the cars. When he saw plaintiff approaching the train the engineer was not required to keep his eye on him. He had a right to suppose that plaintiff, or any other sane man, standing right by the train, would walk around it rather than crawl under it, *224especially when, as plaintiff admits, be saw tbe engine fixing to shift tbe cars.

Tbe act of diving between cars for tbe purpose of crossing over to tbe other side takes but a few seconds. It is such an instantaneous act that if tbe engineer bad seen it at same time be opened bis throttle, be could not have stopped quick enough to prevent injury.

From plaintiff’s own testimony it is apparent that when be jumped between tbe cars tbe engineer was then about starting to back bis engine. Tbe two acts must have been almost simultaneous, else plaintiff, an active man, would have gotten through without hurt.

I think tbe inference which tbe majority of tbe Court thinks can possibly be drawn from this evidence is unwarranted and is unjust to tbe engineer. I am willing to bold engineers up to tbe full measure of their duty and to bold their employers responsible for their negligence, but I am not willing to place an imputation of gross negligence upon their good name upon such flimsy evidence as is presented in this record.

It may be said that this is not a suit against tbe engineer and that be has no interest in tbe result as tbe railroad company will have to foot tbe bill.

But tbe engineer has a direct personal interest in tbe result, for it seriously affects bis professional standing. While this can have no effect upon tbe members of this Court, it should at least make us careful not to place a construction upon evidence so injurious to tbe engineer unless the evidence clearly warrants it.

Mb. Justice Waleee concurs in tbe dissent.