#### W. C. WOLFE v. SEABOARD AIR LINE RAILWAY COMPANY.

(Filed 12 April, 1911.)

1. Evidence — Negative of a Positive Character.

Evidence negative in form may partake of an affirmative character, as when a witness testifies to listening for approaching locomotives at a railroad crossing and not hearing one, or the usual signals, such as ringing the bell or blowing the whistle, etc.

*5702. Railroads — Crossings—Warnings—“Look and Listen” — Obstructed View — Negligence.

When there is evidence that the plaintiff was injured by defendant’s locomotive coming without warning or signals while he was crossing the track; that before crossing he had listened for the approach of locomotives without hearing any, and that the one causing the injury came unexpectedly from a direction where the view was obstructed by cars standing on the track, the question of defendant’s negligence is a proper one for the jury.

3. Same — Contributory Negligence — Exceptions.

A person in attempting to cross a railroad track must both look and listen when he gets within the zone of danger, and while his failure to do so ordinarily bars his recovery for an injury received by reason of his attempting to cross, yet attendant circumstances may so qualify this obligation as to require the question of contributory negligence to be submitted to the jury.

4. Same — Master and Servant — Scope of Employment.

At a public crossing over defendant’s road where there were a large number of defendant’s railroad tracks, plaintiff was employed by it as a watchman to warn those desiring to cross of danger in their doing so which might then exist. At the time in question plaintiff, in the discharge of Ms duties, desired to warn a person preparing to cross of his danger from a shifting engine, and, after listening for the approach of locomotives without hearing anything, attempted to cross the track for the purpose of the contemplated warning, and was injured by an engine of defendant passing on the main line. There was evidence tending to show that the plaintiff was watching the shifting engine and the person he desired to warn, at the time he received his injury, and that the engine which injured him came without signals or warnings from a direction where the view was obstructed by cars standing on side or lateral tracks to the main line: Reid, (1) under these circumstances the defendant owed plaintiff the positive duty by active vigilance to warn him, by proper signals, of the approach of the locomotive, and the question of contributory negligence was properly submitted to the jury; (2) the plaintiff was not held to have assumed the risks of the defendant’s negligent failure to give the proper signals or warnings of its passing locomotive.

5. Same — Rule of the Prudent Man — Instructions.

The plaintiff, employed by defendant to warn those desiring to cross its many tracks at a public crossing of any danger which *571might exist, was injured by a passing locomotive while endeavoring to discharge his duties under circumstances which rendered the issue of contributory negligence a proper one for the jury, and it is held that this case is governed by the “rule of the prudent man,” and that the trial judge properly instructed the jury that it was plaintiff’s duty to exercise all reasonable vigilance by looking as well as listening for approaching trains as the circumstances and his occupation and duty to the traveler permitted ; and that if he failed to do so, it was such contributory negligence as barred his recovery.

Appeal from W. R. Allen, J., at October Term, 1910, of ANSON.

Civil action for personal injury. Tbe usual issues of negligence, contributory negligence, and damage were submitted to tbe jury. Tbe response to eacb issue was in favor of plaintiff.

From tbe judgment rendered, tbe defendant appealed.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.

Redxvine & •SiJces, Robinson & Caudle, and Williams & Lexn-xnond for plaintiff.

John D. Shaw and Mux-ray Allexi for defendant.

Brown, J.

Tbe three exceptions to evidence are without merit and need not be discussed, nor do we deem it necessary to discuss seriatim tbe numerous exceptions to tbe charge.

Tbe plaintiff was defendant’s watchman at a crossing in Monroe, over which there were nine railroad tracks. This crossing is within tbe corporate limits and is used by a very large number of people, in consequence of which defendant employed plaintiff as a watchman to keep a lookout and conduct persons and vehicles safely across.

On 25 August, 1906, the plaintiff was on duty at tbe crossing and saw a wagon and a man walking beside it approaching the tracks for purpose of crossing. At the moment plaintiff was standing at the end of the freight depot, under the eaves, out of the rain, which plaintiff says was the only shelter he had. Shifting was going on on one of the tracks and cars were standing on the “house track.” When plaintiff discov*572ered tbe man and bis wagon, be started to walk across tbe tracks to biro, to tell bim be could soon pass. As be crossed tbe main-line track a passing engine struck bis leg and injured bim.

1. It is contended by tbe defendant that there is no evidence of negligence.

Tbe negligence consists in tbe alleged failure of tbe engineer to ring bis bell in approaching this crossing, as required by the rules of tbe defendant, or to give any other signal.

In respect to this, plaintiff testifies: “Just before I started, I listened for a train and did not bear any; did not bear any whistle or bell; did not bear tbe approach of any engine or train on that side. I could not see tbe engine on tbe main line; there were cars on tbe bouse track between me and tbe main line.” This testimony, while negative in form, partakes of an affirmative character. It is tbe evidence of one whose personal safety was at stake, who was on tbe track and who bad every opportunity and reason to listen intently for an approaching engine. He says be listened and could bear no bell or other signal.

In Stricklands case, 150 N. C., 7, relied on by tbe learned counsel for defendant, Mr. Allen, tbe testimony of tbe witness Whitley was wholly negative and worthless. Pie crossed tbe track 200 yards ahead of an approaching train and did not see tbe headlight on tbe engine. He was a casual passer, and did not say that be looked in tbe direction of tbe engine. Evidently be bad no- reason to look. There is therefore a marked difference in tbe character of Whitley’s evidence and that of this plaintiff’s. We think bis Honor properly submitted tbe matter to tbe jury.

2. It is contended that upon tbe plaintiff’s evidence be was guilty of contributory negligence as matter of law because be failed to look for tbe approaching engine before be crossed tbe main-line track, and therefore tbe motion to nonsuit should have been sustained.

We recognize tbe rule as laid down in a multitude of decisions of this and other courts that a person in attempting to *573cross a railroad tract must both, look and listen when be gets within the zone of danger, and a failure to do so is sucb negligence as bars a recovery for injury sustained. Cooper’s case, 140 N. C., 209; Coleman’s case, 153 N. C., 322. But, as said in tbe latter, case, there are “exceptions to tbis as well as most other rules.” And as said in Sherrill’s case, 140 N. C., 255, “attendant cii'cumstances may so qualify tbis obligation to look and listen as to require tbe question of contributory negligence to be submitted to tbe jury.”

While sucb cases are rare, we think tbis plaintiff has brought himself within tbe exception.

Tbe plaintiff testified “that be saw a wagon standing opposite to him, five or six railroad tracks being between him and tbe wagon; that be was standing next to tbe public road at tbe end of tbe freight depot, and saw a man on tbe public road crossing tbe track; that tbe wagon was going towards him; that there was a man on tbe wagon and one walking on tbe ground, and that when be saw him be bad stopped. When I saw tbe man standing there in tbe wagon, I started to go across tbe track. I was going to speak to him and tell him that be could soon pass. Just before I started, I listened for a train and did not bear any; did not bear any whistle or bell; did not bear tbe approach of any engine or train on that side. I could not see tbe engine on tbe main line; there were cars on tbe bouse track between me and tbe main line. I bad a parasol with me. When at tbe end of tbe depot, it was closed, and when I started to cross tbe track I opened it. I was bold-ing it over me. It was not raining much. When I started from tbe end of tbe freight depot to cross to where tbe man was in tbe wagon, I was looking at tbe wagon that was over there and noticing for cars, shifting engine, and box cars. I was looking over where tbe shifting engine was and was watching tbe man to keep him from crossing.. I did not want him to pass at that time; there was danger from tbe cars. That Avas part of my duties. When I started, I went abross tbe bouse track, and when going in that direction I was looking at tbe wagon that was standing over there. When I was cross*574ing the main line, the engine hit me on the leg. The engine was coming from towards the'coal chute. I was at that time on the public crossing.”

Plaintiff further testifies: “It was customary to ring the bell and blow the whistle when engines approached this crossing; it was my duty to keep the cars off the crossing. I could not do this unless I saw them; I wanted to watch the wagon and I wanted to watch the crossing. I told the man to hold on, because there was danger of cars being shifted at that time — box cars and switching engines. I was watching this engine to tell him of the danger of cars going on the crossing. I wanted to tell the man on the wagon not to drive on, because there was danger of the cars being shifted at that time. When there were cars on this side it was my duty to tell the people on the crossing and warn them of the danger into which they were going.” Plaintiff further stated “that he did not know what engine struck him; that it was one on the main line, passing through the yard. That it was not the shifting engine. That the engine'had not been around there before that day; that he did not know where it was going. That he did not know where it came from. That it was not making any fuss.”

Upon cross-examination plaintiff states that when he crossed the house track he did not look towards the coal chute; that if he had then looked he could have seen this engine that struck him on the main line, as there was nothing to prevent after crossing the house track; that he did not look towards the coal chute because he did not hear any hell and “did not hear any sign of any train.” Plaintiff gives his excuse for not looking down the main line towards coal chute: “I did not hear anything of any bell and did not hear any sign of any train. Instead of looking for a train, I was' looking for that wagon. Instead of looking towards the coal chute, I was looking towards the wagon.” He further says he knew the wagon was across the tracks, and that he used his hand to signal it, in order to keep it from crossing until it was safe to do so.

The evidence of plaintiff tends to prove that he was attend*575ing to bis duties. At tbe time that be was stricken bis attention was fastened upon tbe shifting engine, shifting cars immediately west of tbe crossing, and over tbe crossing, and to tbe man and wagon at that time endeavoring to cross tbe tracks. There was no other engine upon tbe yards and bad not been since tbe regular trains bad left. He bad no occasion to anticipate tbe approach of any train or engine. Tbe one that struck him bad not been upon tbe yard that day. It came from tbe round-house and gave no signal of its approach. Tbe plaintiff, with bis attention fixed upon tbe shifting engine and tbe travelers, was taken by surprise. He listened for tbe approach of trains and beard no noise before starting from tbe shed to cross tbe tracks to tbe wagon. Being satisfied by listening that no train was approaching, be started to tbe wagon and at same time signaling by band and voice to attract tbe driver’s attention.

Tbe plaintiff was employee of tbe defendant and in tbe actual discharge of bis duties when injured. His station was at this crossing and bis duties required him to be almost constantly on and near tbe tracks, crossing and recrossing. He is not, therefore, to be judged as a trespasser, licensee, or traveler, who has nothing to do but look and listen when they approach a railroad track.

Tbe employee whose occupation requires bis presence on and near tbe tracks has other duties to engage bis attention. Tbe passer-by, whose sole duty is to look and listen, is held to a greater degree of vigilance than tbe employee, whose attention must necessarily be diverted by his work. Brown v. R. R., 144 N. C., 635; Smith v. R. R., 132 N. C., 819.

Tbe plaintiff was employed in a most dangerous work, requiring bis almost constant presence on tbe tracks. Under such circumstances tbe defendant owed him tbe duty of active vigilance in giving warning of tbe approach of engines and trains and tbe plaintiff bad tbe right to rely upon tbe performance of this duty in discharging bis own duty and caring for bis personal safety.

While plaintiff assumed tbe risks naturally incident to so *576dangerous an occupation, a failure to ring the bell or give other, warning of the approach of trains is a risk not assumed by him. Schultz v. R. R., 37 Minn., 271; R. R. v. Henze, 71 Mo., 636.

In Erickson v. R. R., 41 Minn., 500, it is said: “Had plaintiff been employed by defendant to work on its tracks, there probably would have been no question raised that defendant would have owed him the duty of active vigilance,” and it is held that the employee had the right to rely upon the continued performance of defendant’s duty to give proper signals of the approach of trains.

It must not be assumed, however, that the plaintiff, a watchman at a crossing for the protection of passers, is relieved from all obligation to look as well as listen for approaching engines. He is under the highest obligation to do so, both for the protection of travelers as well as for his own safety. But this duty is to be considered in connection with his primary duty to warn and protect travelers approaching the crossing, and as far as his immediate duty to them will permit, the watchman must look as well as listen.

The rule is well stated by Mr. Justice Manning in Farris v. R. R., 151 N. C., 490: “While we are in no wise 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 the 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, because he 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.”

This reasonable rule is supported by the adjudications of other States as well as text-writers, 3 Elliott on Railroads, sec. 1166 A, and eases cited, and is both humane and conservative of human life, as well as consonant with sound public policy.

Under the circumstances testified to by plaintiff, we do not *577think as matter of legal inference that he was necessarily guilty of contributory negligence. Sis Honor properly submitted the conduct of the plaintiff upon all the evidence to the judgment of the jury under “the rule of the prudent man,” and substantially instructed them that it was plaintiff’s duty to exercise all reasonable vigilance by looking as well as listening for approaching trains as the circumstances -and his occupation and duty to the traveler permitted, and that if he failed to do so it was such contributory negligence as barred recovery.

Under the circumstances in evidence in this case we find no error in such instruction.

We do not deem it necessary to further discuss the exceptions to the charge. They are disposed of by the views expressed in this opinion.

Upon the whole record we find

No error.