#### J. A. DAVIDSON v. SOUTHERN RAILWAY COMPANY.

(Filed 15 November, 1911.)

1. Railroads — Crossings—Issues—Negligence—“Last Clear Chance” —Evidence.

In an action for damages to plaintiff’s team while endeavoring to cross defendant railroad company’s track at a public crossing, no issue as to the last clear chance is raised on evidence tending to show, on plaintiff’s part, that at a signal from defendant’s watchman he was endeavoring to and would have crossed safely except for the act of defendant’s yardmaster in slapping his mules in the face, causing them to run into a passing train; and on defendant’s part, that the watchman signaled the. plaintiff’s *579driver to stop, and that the injury was caused by his not having done so and by whipping- up his team when the yardmaster was endeavoring to prevent his crossing at the time.

2. Issues — “Last Clear Chance” — Objections and Exceptions — Issues Submitted — Issues Requested.

When the complaining party has not submitted an issue, or excepted to the issues tendered, he cannot successlully appeal for the failure or refusal of the judge to submit the issue.

3. Railroads — Crossings—Contributory Negligence — Instructions— Evidence — Intimation of Court.

In an action for damages for injury to plaintiff’s mules and wagon at a railroad crossing in a collision with the passing train of defendant railroad company, under conflicting evidence as to whether the proximate cause was the negligence of the defendant's employees or the negligence of the plaintiff’s driver in whipping up the mules when the employees were endeavoring to keep them from crossing the track, it is reversible error appearing of record for the trial judge to instruct the jury that they should answer the issue as to contributory negligence in the affirmative, should -they find that plaintiff’s driver, by assisting the defendant’s employees to stop the mules, could have avoided the injury complained of; and if they do not so find, they will answer this issue “Yes.”

Appeal from Lyon, J., at May Term, 1911, of Ibedell.

These issues were submitted without objection:

1. Were plaintiff’s mules and wagon injured by the negligence of the defendant, as alleged in the complaint ? Answer: Yes.

2. Were the mules and wagon injured by the contributory negligence of the plaintiff’s driver, as alleged in the answer? Answer: Yes.

3. What damage, if any, is the plaintiff entitled to recover? Answer: .

The court rendered judgment for defendant, and plaintiff appealed.

H. P. Grier, Z. V. Long for 'plaintiffs.

L. G. Caldwell for defendant.

BbowN, J,

The evidence for plaintiff tends to prove that his driver, Arthur Johnson, approached defendant’s tracks at Statesville with a view to crossing; that the watchman signaled *580Mm to cross, and as be was driving across, tbe yardmaster bit tbe mules in tbe face and tried to stop tbem, and tbat in consequence tbey were injured by a train. Plaintiff contends tbat if tbe yardmaster bad not interfered, bis team would bave safely crossed.

Tbe defendant’s evidence tends to prove tbat tbe watchman signaled tbe driver to stop before be started across tbe tracks; tbat be did not beed tbe signal; tbat when tbe yardmaster attempted to-stop and turn tbe mules, tbe driver whipped tbem up, in consequence of which tbe approaching train ran. into tbem.

It is contended tbat bis Honor should bave submitted an issue as to tbe last clear chance. Upon tbe evidence in tMs case and tbe contentions of tbe parties, we do not think tbe issue is raised. If it was, however, tbe plaintiffs failed to tender tbe issue and except to those submitted.

Tbe plaintiff excepted to tbe charge of tbe court upon tbe second issue, which is as follows: “Now, tbe defendant contends tbat if you should find tbat tbe defendant was negligent, if you should find tbat it signed, or invited tbe plaintiff’s driver, Johnson, to come on with tbe wagon and team, tbat still plaintiff’s servant was guilty of contributory negligence; when be was on tbe main track, when tbey tried to stop him — tbe evidence, you will remember, tends to show tbat tbe plaintiff Johnson was on tbe middle track, tbe main track; tbat Garrison jumped off tbe car and ran and bit tbe mules in tbe face with bis bat, caught bold of one of tbem, and tbe flagman ran around with bis flag trying to flag tbem down; tbe evidence tends to show tbat tbe driver of plaintiff’s team put whip to tbem and forced tbem on. If you find tbat to be a fact, notwithstanding the negligence of tbe defendant, if you find tbat the defendant was negligent; if you further find tbat, notwithstanding tbe defendant’s negligence, tbe plaintiff could bave avoided tbe injury by assisting tbe flagman and Garrison to stop tbe mules and not whip tbem, and if you find that bis putting whip to tbe mules and not trying to stop is tbe proximate causé, tbe burden being on tbe defendant to show by tbe greater weight of *581the evidence, it would be your duty to answer the second issue ‘Yes.’ If you do not so find that it was the negligence on the part of Johnson, the driver, why you would answer the second issue Yes.’ ”

It may be that his Honor inadvertently used the word “Yes” at close of the above paragraph, and intended to use the word “No.” But we are bound by the record.

If the evidence offered by the defendant is believed, the driver Johnson was guilty' of very gross negligence which directly caused the injury and would bar a recovery; but this evidence was controverted by plaintiff.

The instruction of the court, as appearing in the record, was tantamount to directing a verdict. He charged, substantially: “If you do not find that Johnson was guilty of negligence, you will answer second issue Yes.’ ” This is manifest error and entitles plaintiff to another trial. We doubt not that the record is erroneous, or else that it was a lapsus lingua upon the part of the careful and painstaking judge; but it appears so in the record, and we are' bound by it. It is our duty to state that the ease on appeal was agreed to by counsel and not submitted to the judge.

New trial.