#### B. F. PENNY v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 26 October, 1910.)

1. Carriers of Passengers — Dangerous Conditions — Passengers' Safety — Conductor’s Duty.

While a common carrier is not an insurer, its servants are required to exercise the highest degree of care in the transportation, as well as the protection, of passengers from actual impending assaults of fellow passengers and intruders; however, the carrier is not required to foresee and guard the passenger against all assaults, but only against such as from the circum'stances may' reasonably be expected to occur.

2. Carriers of Passengers — Employee a Passenger — Wrongful Acts.

An employee of a railroad, but in this instance but a passenger, and not engaged in the performance of a duty to his employer, must be regarded as a passenger, in an action against the railroad company for injuries to a fellow passenger inflicted by another passenger as a result of his acts, and a charge which assumes that the defendant is in any event liable for his acts is erroneous.

3. Same — Acts of Another — Intervening Cause — Evidence—“Fracas” . —Causal Connection.

O., a passenger on defendant’s train, being partly intoxicated, became disorderly between stations, whereupon the conductor with the assistance of the porter, the baggage man and L., another *297passenger, searched the disorderly passenger for arms, and entirely quieted the disturbance before the train reached the next station. There the disorderly passenger alighted, and, with the train still standing, got into a violent altercation with L., who borrowed a pistol from the baggage-master, just at the time the plaintiff, also a passenger, was alighting at the station, his destination. L. attempted to fire on C., his pistol snapping, and C. thereupon drew a pistol, fired at L. and inflicted wounds on the plaintiff. There was evidence that the conductor was in position to see the danger of plaintiff, and permitted him, without warning, to place himself, by alighting, in a place of danger. Held, (1) A charge to the effect that defendant would be liable if the baggage-master knew the purpose for which he loaned the pistol, is erroneous, there being no evidence of such knowledge; (2) the act of loaning the pistol was not the proximate cause of the injury resulting from the stray bullet, and there is no causal connection between them.

4. Same — Contributory Negligence — Instructions—General Terms— Specific Requests.

In an action for damages against a railroad for injuries received by plaintiff, a passenger, from a stray bullet in a fracas between two other passengers, there was evidence that the train had stopped at the station and conflicting evidence that the shooting occurred in the presence of the conductor under circumstances wherein he should have warned plaintiff in time, and of circumstances under which plaintiff himself should have seen the danger in time to have avoided the injury. Held, error to refuse to charge, at defendant’s request, that plaintiff could not recover if he did not do what a reasonably prudent man would have done in avoiding danger; and if he did not turn out of his way and avoid the injury, which by the exercise of his senses for his own protection he could have avoided, and thus failed to do so, his contributory negligence would bar his recovery; and a charge upon the plaintiff’s duty in general terms, as to his exercising his senses for his own protection, is insufficient compliance with a correct request pointing out the particular phases of the evidence.

5. Carriers of Passengers — Dangerous Conditions — Duty of Conductor — Duty of Passengers.

It is the duty of the conductor to warn the passengers of danger to them, obvious to him, when they are alighting from the train at a station, and the railroad is responsible in damages arising from his neglect of this duty when the passengers could not perceive the dangers while acting with the care of a prudent man in the exercise of his faculties.

*298Appeal from Goolce, J., at tbe April Term, 1910, of New Hawovee.

Civil action to recover damages for a personal injury. Tbe following issues were submitted:

1. Was tbe plaintiff injured by tbe negligence of tbe defendant? Ans., Yes.

2. Did tbe plaintiff by bis own negligence contribute to bis injury? Ans., No.

3. Wbat damage, if any, bas tbe plaintiff sustained? ■ Ans., Five thousand dollars ($5,000).

4. Is tbe cause of action stated in tbe amendment to tbe complaint filed at April Term, 1910, barred by tbe statute of limitations? Ans., No.

From tbe judgment rendered tbe defendant appealed.

A. J. Marshall, E. K. Bryan, Bellamy & Bellamy for plaintiff.

Davis & Davis, J. D. Bellamy, Geo. Rountree for defendant.

Beoww, J.

We are of opinion tbat tbe complaint presents but one cause of action, and tbat is tbe allegation tbat tbe defendant, while tbe plaintiff was a passenger onfits train and entitled to its protection, negligently failed to protect him while alighting at tbe end of tbe journey, in consequence of which tbe plaintiff was injured. ■ Tbe amended complaint sets out no cause of action and adds nothing to tbe original complaint. Therefore, tbe fourth issue in regard to tbe statute of limitations is unnecessary.

There is evidence tending to prove tbat on 18 September, 1898, plaintiff was a passenger on defendant’s train from Wilmington to Leland, N. O., in tbe second-class car.

A negro passenger, Sam Calloway, partly intoxicated, became very disorderly, and after much trouble, was subdued by tbe conductor with tbe assistance of tbe porter, tbe baggage master Van Amringe, and one LaMotte, who was a passenger on this train, although in tbe employment of defendant, but not on duty. Tbe conductor then undertook to search Calloway for arms, but found none. Tbe disturbance bad been entirely quieted before train reached Leland.

*299Galloway jumped off train at Leland, and while on the ground, seeing LaMotte, asked him if he meant to cut him; LaMotte replied, “I will cut your heart out,” and then went in baggage car and asked Yan Amringe, the baggage master, for his pistol, which Yan Amringe gave him. LaMotte then went to the platform of the secpnd-class car, the train being at full stop for passengers to get off. The negro Galloway was on the ground in a diagonal direction on the Leland side. LaMotte snapped pistol three times at hitíi, but it did not fire. Just about this time plaintiff passed over from the second-class car on the platform of first-class ear and down the steps of the car for the purpose of leaving the train. It was then that Galloway fired, and the bullet took effect on plaintiff, injuring him.

It is contended by the plaintiff that the conductor was standing on the car platform, knew what was going on, and permitted plaintiff unwillingly without warning to step down on ear steps in a highly dangerous position, in consequence of which he was shot. This is plaintiff’s only cause of action, and it is clearly stated in the complaint.

The defendant denies the alleged negligence of the conductor Garmon, and offers evidence tending to controvert plaintiff’s contention. Defendant also contends that the plaintiff must have seen the disturbance, and carelessly and negligently, without necessity, exposed himself to obvious danger.

His Honor instructed the jury that if the defendant, by the exercise of the "highest degree of care and human .forethought” could have prevented LaMotte from assaulting Calloway, and that this would have saved Penny from being injured, and defendant failed to do so, defendant would be liable, and to answer first issue, Yes.

This instruction is erroneous in two respects. 1. It assumes that the defendant is in any event liable for LaMotte’s acts. He was not on duty, but was a passenger on the train, and in the consideration of this case must be regarded as such. The conductor in charge of the train was not bound to foresee that La-Motte would borrow a pistol and engage in a difficulty with Calloway after Calloway had left the train and ceased to be a passenger. The conductor could not foresee that Calloway had *300a pistol with which injury might be inflicted on a passenger, since he had searched Calloway and found none. 2. While the carrier is not an insurer, its servants are required to exercise the highest degree of care in the transportation, as well as the protection, of passengers from actual impending assaults of fellow passengers and intruders.

For the latter purpose it must use all available means at hand. But the carrier is not required to foresee and guard the passenger against all assaults, but only agaiiist such as from the circumstances may reasonably be expected to occur. The duty of the defendant is clearly stated in Britton’s case, 88 N. C., 536, by Ruffin, J., as follows: “And while not required to furnish a police force sufficient to overcome all force, when unexpectedly and suddenly offered, it is his duty to provide ready help sufficient to protect the passenger against assaults from every quarter which might reasonably be expected to occur under the circumstances of the case and' the condition of the parties.” This view of the law. is well sustained by authorities elsewhere. Pounder v. R. R. (1892), 1 Q. B. D., 383; Royster v. R. R., 67 Miss., 376; Putman v. R. R., 55 N. Y., 108; Brooks v. R. R., 168 Mass., 164, 168.

The court further instructed the jury: “If the jury shall find by the greater weight of the evidence that a difficulty was pending between LaMotte and Calloway and Yan Amringe, the baggage master on the train, with a knowledge of the purpose for which LaMotte wanted it, handed him a pistol with which he could shoot Calloway, and that LaMotte took the pistol out on the platform, and pointing the same towards Calloway tried to shoot him, but could not discharge the pistol, and this caused the said Calloway to fire the shots at LaMotte which struck the plaintiff, then the jury should answer the first issue, Yes.”

It is contended that his Honor neglected to give the correlative contention of the defendant, and that he should have told the jury that if Yan Amringe gave the pistol to LaMotte without any knowledge of the purpose for which LaMotte intended to use, then the defendant would not be liable on this ground.

In Jarrett v. Trunk Co., 144 N. C., 299, it is held that if the trial judge undertakes to apply the law to the facts and gives *301tbe contention of one side, it is bis duty, without being requested, to give tbe correlative contention of tbe other side. But tbe instruction, in our opinion, is itself erroneous. 1. Because there is no evidence that Van Amringe knew or bad reason to believe that LaMotte borrowed tbe pistol for an unlawful purpose. 2. Tbe act of Van Amringe in lending tbe pistol to LaMotte was not tbe proximate cause of tbe injury to plaintiff — which was caused by a stray bullet fired from Calloway’s pistol.

Tbe accidental wounding of plaintiff did not follow in direct sequence from tbe act of Van Amringe, assuming for tbe sake of argument that tbe latter was guilty of negligence in lending bis pistol to LaMotte. Ramsbottom v. R. R., 138 N. C., 39. In this case it is held by Mr. Justice Solté that tbe proximate cause of an injury is one that produces tbe result in continuous sequence, without which it would not occur, and which a man of ordinary prudence could reasonably be expected to foresee.

There is, in legal parlance, no direct causal connection between tbe act of Van Amringe in loaning tbe pistol and tbe unforeseen accidental injury to plaintiff by Calloway. Harton v. Telegraph Co., 146 N. C., 429; McGee v. R. R., 147 N. C., 142; Bowers v. R. R., 144 N. C., 684; 1 Street’s Foundations, 120. To constitute liability there must not only be a breach of duty owing by tbe defendant to tbe plaintiff and injury to tbe latter, but tbe breach of duty must be tbe cause, and tbe proximate cause, of tbe injury. So far as tbe act of Van Amringe is concerned it is a case of post hoc, but not "ergo propter hoc," as was said by Manning, J., in Hudson v. McArthur, 152 N. C., 452.

In McDowall v. Great W. R. R. Co. (1903), 2 K. B., 331, on page 337, Vaughan Williams, L. J., says: “In those cases in which a part of tbe cause of action was an interference of a stranger or a third person, tbe defendants are not held responsible unless it is found that that which they do, or omitted to do — ■ tbe negligence to perform a particular duty- — is itself tbe effective cause of tbe accident.”

That case is instructive upon this point. It was there held that tbe servants of tbe defendant bad been guilty of negligence in not properly placing tbe railway van, but that it having been *302interfered with by trespassers, the negligence of the defendant’s servants was not the effective cause of the accident, and the defendant was exonerated. In Burt v. Advertising Newspaper Co., 154 Mass., 238, Mr. Justice Holmes uses this language: “Wrongful acts of independent third persons, not actually intended by the defendant, are not regarded by the law as natural consequences of his wrong, and he is not bound to anticipate the general probability of such acts, any more than a particular act by this or that individual.”

That proposition is illustrated in a great number of cases. Cole v. German S. & L. Soc., 124 Fed., 113; Laidlaw v. Sage, 158 N. Y., 73; Leeds v. N. Y. Tel. Co., 178 N. Y., 118; Clark v. Wilmington R. R., 109 N. C., 430; Butts v. R. R., 110 Fed., 329; Johnson v. Association, 68 L. R. A., 499; Winfall v. Jones, 1 L. R. A. (U. S.), 201.

Upon the issue of contributory negligence the court failed to give the following requested instruction, which is assigned as error: “If the jury shall find from the evidence that Penny, the plaintiff, went out on the platform and at that time the negro had the pistol aimed towards the car where Penny was, and the danger could be as reasonably apprehended by the plaintiff as by the defendant, and the plaintiff did not turn out of his way or go back to avoid the injury, and the accident happened, he would be guilty of contributory negligence. It was the duty of the plaintiff to exercise his senses for his own protection, and if he saw the danger, or could have seen it in the exercise of the reasonable care of a prudent man and failed to do so, he would be guilty of contributory negligence, and you should answer the second issue, Yes.” This is a correct proposition of law and should have been given.

This instruction points to particular phases of the evidence, and it was error to refuse it, although his Honor did tell the ju\y in very general terms that “it was plaintiff’s duty to exercise his senses for his own protection.” Horne v. Power Co., 141 N. C., 50.

Recurring to the allegation of negligence, the duty which defendant owed to plaintiff is to be determined by what transpired when the train stopped at Leland and the plaintiff undertook to *303aligbt at tbe end of bis journey. It is undoubtedly true that tbe conductor bad no power to restrain plaintiff and prevent bim from leaving tbe train. Nevertheless, if as is charged by plaintiff, tbe conductor was standing on platform, when plaintiff came out of tbe car for tbe purpose of leaving, and if tbe conductor could then see that it was obviously dangerous for plaintiff to go down tbe steps at that moment, it was bis duty to warn tbe plaintiff and apprize bim of bis danger.

If tbe conductor, having such knowledge, failed to warn plaintiff and permitted bim to venture on tbe steps ignorantly and unwittingly in tbe presence of obvious danger, it would be an act of negligence upon tbe part of tbe conductor and tbe defendant would be liable for consequent injury.

Per contra, it is equally true, that if when plaintiff came out on tbe car platform, be could see for himself tbe “fracas” going on, it was bis duty to exercise bis faculties, and to act with tbe care of a prudent man and not venture down tbe steps into tbe midst of obvious danger. If plaintiff could see for himself tbe apparent danger, then be needed no warning. If then be ventured in tbe face of it, tbe consequent injury will be attributed to plaintiff’s own negligence, and be cannot recover.

New trial.

HoKE, J.,

concurring. I concur in tbe opinion that there should be a new trial in this case, but do not assent to some of tbe positions stated in tbe principal opinion as ground for the decision. Tbe testimony in tbe record, as I view it, presents two theories on which liability of defendant may be predicated.

1. By reason of a negligent act of tbe conductor of tbe train, in failing to warn plaintiff so as to beep bim out of tbe line of fire.

2. A negligent act, tbe cause of tbe injury, on tbe part of Yan Amringe, tbe baggage master, in lending LaMotte tbe pistol, with which be attempted to shoot tbe negro.

Tbe first view seems to have been presented to the jury without valid exception. On tbe second, tbe court charged tbe jury: “If tbe jury find from tbe evidence, by its greater weight, that one LaMotte called for a pistol, with wbieb be assaulted Sam *304Calloway, and the defendant’s servant, Yan Amringe, the baggage master, in compliance with LaMotte’s request, gave to La-Motte a pistol with which to assault Calloway, knowing, or having reasonable grounds to believe, that LaMotte was going to use the pistol for that purpose, and that after LaMotte got the pistol he did attempt to assault Calloway, by pointing the same at him .and trying to shoot him, and this assault upon Calloway caused Calloway to draw his'pistol and attempt to shoot La-Motte, and, in shooting at LaMotte, shot the plaintiff, Penny, then the jury should answer the first issue, Yes; and this for the reason that it was the duty of the agents and employees of defendant company to do all in their power to prevent assaults and disturbances which were likely to bring on an assault or fight, and it does not matter that Yan Amringe did not personally make the assault, if he gave the pistol to LaMotte with which to make the assault, and LaMotte did make the assault, both LaMotte and Yan Amringe would have been guilty of an assault with a deadly weapon, as there are no accessories before the fact in misdemeanors. And if the jury further find from the evidence, by its greater weight, that the assault would not have been made by Calloway but for the wrongful act of Van Amringe and LaMotte, then the jury should find that the plaintiff’s injury was proximately caused by the neglect and wrongful conduct of the defendant, through its servants and employees.” And again: “If the jury shall find by the greater weight of the evidence that a difficulty was pending between LaMotte and Calloway and Yan Amringe, the baggage master on the train, with a knowledge of the purpose for which LaMotte wanted it, handed him a pistol with which he should shoot Calloway, and that LaMotte took the pistol out on the platform, and, pointing the same towards Calloway, tried to shoot him, but could not discharge the pistol, and this caused the said Calloway to fire the shots at La-Motte which struck the plaintiff, then the jury should answer the first issue, Yes.”

Defendants except to this charge and assign for error what is, to my mind, a perfectly valid objection. There was testimony introduced tending to show that from the attitude and conduct of the negro, either LaMotte or Yan Amringe, the baggage mas*305ter, bad the present right to use a pistol in the legitimate protection of tbe train and its passengers or themselves, and thus presenting and requiring the view that the act of Yan Amringe may have been free from fault. Under certain conditions the doctrine of self-defense is available in actions of negligence, as in other eases. Laidlaw v. Sage, 158 N. Y., p. 90.

Even if it is conceded that these excerpts correctly express the view tending to inculpate, the charge nowhere refers to the opposing and necessarily correlative view which tends to excuse defendant company, and to my mind the failure to present the case in this respect constitutes reversible error under the principles declared and upheld in Jarrett v. Trunk Co., 144 N. C., p. 299, and Meredith v. Coal Co., 99 N. C., p. 576. I am inclined to think that the charge, as giyen, is positively erroneous in that it fails to say that if Yan Amringe, wrongfully and in breach of his duty to safeguard the passengers, supplied the pistol, etc. The portion of the principal opinion, from which X am compelled to withhold my assent, is the position maintained, as I interpret it, that there is no evidence tending to show that the act of Yan Amringe, in lending the pistol to La-Motte was wrongful; or, that if it was, there is no evidence to show that such act was the proximate cause of the injury. On the first proposition, the negro, Galloway, examined as a witness for the plaintiff, testified, in respect to himself, that he was the aggrieved party throughout the occurrence. That he was wrongfully assaulted in the car by LaMotte, and the conductor without justification, shoved him down in the seat, and La-Motte, with an open knife, said, “If he (the negro) breathed, he would cut his damned throat.” Shortly thereafter as the train slowed for Leland witness asked them to let him get out, LaMotte holding the knife on him. That when the witness got on the ground, he asked LaMotte if he wanted to cut witness, and LaMotte replied, “Yes, God damn you, I will cut your heart out,” and by that time LaMotte called for a gun and witness was close to the car steps. LaMotte snapped the gun in his face, and witness began to run back and was feeling in his pocket for his gun. That LaMotte snapped the gun on witness *306three times before witness could draw Ms, running backward all the time, when witness got Ms gun out and fired twice (the shots that caused the injury). Record, p. 45, and again p. 46.

“Q. Where did LaMotte go when he asked for a pistol?” Ans. He went back to the door of the second-class car where I had just come out, and it seems time he got to the door somebody gave him a pistol and he came back. The first thing he did after he got the pistol he snapped it in my face.” The testimony showed that the original difficulty occurred in one compartment of a car, divided into a baggage car and coach for second-class passengers; that the coach connected with the baggage car by a door, and the evidence tended to show that Yan Amringe was cognizant of all the facts. Speaking to the question of such knowledge Yan Amringe himself testified: “My attention was called to the loud talking, and when they pulled out from Navassa, I went through the partition to the baggage car door. I noticed a crowd — not a crowd, either; it seems that Captain LaMotte and Captain Carmon were talking to a negro fellow down by the stove.

“Q. Who was Captain LaMotte? A. The conductor for the Coast Line, dead-heading to Florence to bring out a train; he was not on duty at the time. They were talking to a negro. I noticed there was going to be some trouble, and thought it best to go back in the baggage car and await developments. As we were pulling up to Leland (it is not far from Navassa to Leland, it didn’t take long), when we were slowing up, I went back, opened the door and looked in as I was going in the car. Let’s see — I want to get that straight — I went in the car and met Mr. LaMotte coming in there — that is the way I think. I went in the second-class car and Captain LaMotte came in at the door. I went in and got my pistol, as I expected trouble. He came in and^I had my pistol in my hand. He asked for my pistol, and I gave it to him.”

• “Q. What occurred from the time you gave the pistol to Captain LaMotte, where did Captain LaMotte go, and where did you go, and what did you see and what was done ? A. Captain La-Motte went ahead of me out of the car, and stood on the platform of the second-class car, and on the end facing Wilming*307ton — on the rear end of the train towards Wilmington — on the second-class ear. Ton see, when he came out of the car, he just turned around and went to the steps, he didn’t go across; he went on the second-class platform to the left, and he stood up on the top step, and was aiming his pistol at the colored man, trying to shoot him, but the pistol wouldn’t go off on account of having a little safety valve — it had a couple of triggers, and you had to pull both of them to make it fire; it wouldn’t go off; he had it aimed at the colored man.” And again:

“Q. Where was the colored man? A. He had gotten off of the train, as the train slowed up, and was standing at the edge of the swamp, about forty or fifty feet from the rear end of the second-class coach — about the same distance as that door — about forty or fifty feet — between forty and fifty feet to the right of the second-class ear.” And further:

“Q. Were you close enough to hear what was said by Captain Garmon and Captain LaMotte, if they had said anything? A. Yes, I reckon so. Do you mean inside the coach? Q. Eight there on the platform at the time you and Captain LaMotte went out of the door of the car. A. I could have heard anything said — I was on the platform.”

In the presence of this testimony, tending, as it does, to show that the conductor and LaMotte made an unlawful assault upon the negro and that LaMotte was in the wrong throughout, and Yan Amringe must have known it, I think that the position assumed in the principal opinion, “that there is no evidence that Yan Amringe knew or had reason to believe that LaMotte borrowed the pistol for an unlawful purpose, cannot be upheld. The counsel for defendant company, as I understood their earnest and able argument before us, made no such claim and it cannot, to my mind, be for one moment sustained. And the second position referred to, “that the act of Yan Amringe in lending the pistol to LaMotte was not the proximate cause of the injury to plaintiff which was caused by a stray bullet fired from Calloway’s pistol,” cannot be sustained as a legal proposition, assuming as it does to have any significance, that the act of Yan Amringe was not lawful. The law of proximate cause as affected by the intervening acts of an independent agent was *308fully laid down by the Court in Harton v. Telephone Co., 141 N. C., p. 455, et seq., and in which it was held among other things as follows:

“3. There may be more than one proximate cause of an injury, and when a claimant is himself free from blame and a defendant sued is responsible for one such cause of injury to plaintiff, the action will be sustained, though there may be other proximate causes concurring and contributing to the injury.”

“4. The proximate cause of the event must be understood to be that which in natural and continuous sequence, unbroken by any new and independent cause, produces that event, and without which such event would not have occurred. Proximity in point of time or space, however, is no part of the definition.”

“5. The test by which to determine whether the intervening act of an intelligent agent which has become the efficient cause, breaking the sequence of events put in motion by the original negligence of the defendant, is whether the intervening act and the resultant injury is one that the author of the primary negligence could have .reasonably foreseen and expected.”

“6. Except in cases so clear that there can be no two opinions, among men of fair minds, the question should be left to the-jury to determine whether the intervening act and the resultant injury were such that the author of the original wrong could’ have reasonably expected them to occur as a result of his own negligent act.”

When this case was again before the Court (146 N. 0., p. 429) on a fuller statement of the testimony, the Court was. unanimously of the opinion, “that the facts showed that the-original or primary negligence had been insulated by the acts and conduct of an independent, intervening agent, and recovery was therefore denied,” but the general principles laid down in the first opinion was in no wise questioned or denied and under these principles, if it is established that Yan Amringe wrongfully gave LaMotte a pistol, knowing, or having reason to believe he was about to project a pistol duel in a crowd or in close proximity to a train and passengers and one of them was injured, though with the adversary’s pistol, this should, in my opinion, be considered the proximate cause of the injury. Cer*309tainly on this evidence there is no wrong done defendant, in submitting tbe question of proximate cause to tbe jury. As I have heretofore said, there is testimony to the effect that the lending of the pistol was entirely justifiable and I think the defendant is entitled to have this view presented to the jury under a correct charge.

Clark, C. J., concurs in concurring opinion.