#### R. A. ABERNATHY, Administrator, v. SOUTHERN RAILWAY COMPANY.

(Filed 13 December, 1913.)

1. Railroads — Pedestrians—“Look and Listen” — Reasonable Precautions — Negligence-r-Proximate Cause.

One walking on a railroad track is required to look and listen for approaching trains and to be reasonably alert for his own safety, which the employees on the train may assume that he has done, and that he will leave the track in time to avoid an injury, where it does not appear that he is incapacitated from appreciating the danger or avoiding it; and this without reference to the speed of the train at the time; therefore, when under such circumstances a pedestrian is killed or injured by being run upon or over by a railroad train, negligence is imputed to him as the proximate cause of the injury, whether the approaching train gave alarm signals or not, and he may not recover damages therefor.

2. Same — Evidence—Nonsuit.

In an action for damages for the alleged negligent killing of plaintiff’s intestate while walking on defendant railroad company’s pass-traclt, the uncontradicted evidence tended to show that at the time in question, of which the intestate was aware, the defendant’s trains, going in opposite directions, were scheduled to pass there; that at that time one of these trains was on *92the main line waiting for the other to go upon the pass-tract which had given the station and meeting-place sound of the whistle within easy hearing of the intestate, who was not looking or listening for its approach, which otherwise he would have seen, and that he was consequently run over and killed as it was running on the side-track upon, which he was walking: Held, the negligence of the plaintiff’s intestate was the proximate cause of his death, and a motion for a judgment as of nonsuit was properly granted.

Appeal by plaintiff from Cline, J., at June Term, 1913, of BubKE.

It appears in this- case that the intestate of the plaintiff and R. J. Hodge were walking on the main line of defendant near Bridgewater. They left the main line and went to the pass-track because they saw a train, headed east, at the depot. Trains from, the east and the west passed at that place, and the inner side-track was the pass-track. The switch was open from the main line to the inner side-track, so that the train from the east could go onto the side- or pass-track and permit the train going east to pass. The pass-track was known to be used for that purpose. The intestate was killed and R. J. Hodge was injured by the train going west while it was moving on the pass-track towards the station. The engineer had given the station blow with the whistle, and also the “meeting point” blow, before the train entered upon the siding. Abernathy and Hodge could have seen the train if they had looked after they got upon 'the pass-track, in time to have left the track and avoided the accident.

Plaintiff’s witness, S. W. Gannon, said: “I did not see them look around until the signal was given, and Abernathy turned his head. There was no obstacle to keep them from getting out of the way.”

There was evidence that a train coming Horn the east, as this train was, could be seen some distance before it reached Abernathy and Hodge.

Plaintiff’s witness, Ben Corpening, testified*that it was about four minutes from the time he first saw the train until it struck Abernathy, and that the noise of the train,'as it comes in, could *93be beard about balf a mile. There are three tracks at the place, the main line, pass-track, and a shorter side-track further out to the southwest. A work engine was on the last mentioned track exhausting steam and making a loud noise. There were signboards near the place to warn travelers. There was much other evidence of the same kind in the case.

All the evidence was offered by the plaintiff, and at the" close of it the court, on motion of defendant, ordered a nonsuit, under the statute, and plaintiff appealed.

A. A. Whitpner, W. A. Self, Spainhour & Mull for plaintiff.

S. J. Ervin for defendant.

"Walker, J\,

after stating the case: "We have repeatedly held, since the case of McAdoo v. R. R. (105 N. C., 140) was decided in 1890, nearly a quarter of a century ago, that a person walking along the track of a railroad company must look and listen for approaching trains and take care of himself, and the engineer has the right to assume that he has done so and will leave the track in time to avoid any injury to himself, and having the right to act upon this assumption, he is not guilty of negligence in failing to give signals to the pedestrian. If any injury results to the latter, the law imputes it to his own negligence in not using proper caution for his own safety. "We believe this to be a correct statement of the law applicable to such cases, and the one approved by McAdoo’s case, as will appear from the following language of Justice Avery:

“"When a person is about to cross the track of a railroad, even at a regular crossing, it is his duty to examine and see that no train is approaching before venturing upon it, and he is negligent when he can, by looking along the track, see a moving train, which, in his attempt to blindly pass across the road, injures him. Bullock v. R. R., post, 180; 2 Wood R. R., sec. 333. Even where it is conceded that one is not a trespasser, as in our case, in using the track as a footway from a foundry to his house, it behooves him to be still more watchful. The license to use does not carry with it the right to obstruct the road and impede the passage of trains. A railroad company *94has the right to the use of its track, and its servants are justified in assuming that a human being who has the use of all his senses will step' off the track before a train reaches him. Wharton on Negligence, sec. 389a; Parker v. R. R., 86 N. C., 221; 2 Wood R. R., sec. 320.”

The same doctrine has recently been stated, by this Court in its latest opinion upon this question, by Justice Hoke: “We have held in many well considered cases that the engineer of a moving train who sees, on the track ahead, a pedestrian who is alive and in the apparent possession of his strength and faculties, the engineer not having information to the contrary, is not required to stop his train or even slacken its speed because of such person’s presence on the track. Under the conditions suggested, the engineer may act on the assumption that the pedestrian will use his faculties for his own protection and will leave the track in time to save himself from injury.” Talley v. R. R., 163 N. C., 567, citing Beach v. R. R., 148 N. C., 153; Exum v. R. R., 154 N. C., 408.

There may be circumstances where the otherwise absolute duty on the part of the track walker to look and listen and to keep constantly on the lookout for approaching trains may be qualified by circumstances, but they are not present in this case. Here the deceased, and his walking companion who testified in the cause, had notice of the invariable custom that trains passed at that point, and they were in full view of a train “headed east,” then standing at the station and waiting for the coming train to take the inner side-track (which they, for their own convenience, were using for a footway), in order that it might proceed by the main track on its journey. The approaching train gave every possible warning; it blew for the station (a' single long blow) and for the “place to meet and pass” (two short, sharp blows). 'Other persons similarly situated to the intestate and Hodge heard these blows and knew the train was coming to the pass-track. The switch, which they had passed by, was set for the siding, so that the train bound west could enter upon it and wait for the one “headed east” to pass it. It was, therefore, a live track and a place of danger, and they *95looked not, neither did they listen, according to plaintiff’s witness Cannon. The engineer was so sure that they knew of his approach that he did not again blow the whistle until it was too late, and in this, by all our cases, he was in no fault. If it was even negligence at all, it was not a culpable act of negligence. This track was being used by the railroad company every day for the passing of its trains. They were on time, and the moment for their passing had arrived. A court of the highest authority has said that under such circumstánces “the track itself, as it seems necessary to repeat with emphasis, is itself a warning. It is a place of danger, and a signal to all on it to look out for trains. It can never be assumed that trains are not coming on a track and that there can be no risk to the pedestrian from them.” But the same has been so often the utterance of this Court that the doctrine has become deeply imbedded in our jurisprudence. The facts of this particular case bring it squarely within it, and they so clearly point’to the unfortunate negligence of the intestate as the active and efficient cause of his death — and this includes his companion as well— that it is impossible to distinguish it from the many cases decided here upon the same principle, such as McAdoo v. R. R., supra; Parker v. R. R., 86 N. C., 221; Meredith v. R. R., 108 N. C., 616; Norwood v. R. R., 111 N. C., 236; High v. R. R., 112 N. C., 385; Syme v. R. R., 113 N. C., 538; Bessent v. R. R., 132 N. C., 934; Stewart v. R. R., 128 N. C., 518; Wycoff v. R. R., 126 N. C., 1152; Sheldon v. Asheville, 119 N. C., 606; Beach v. R. R., 148 N. C., 153; Lea v. R. R., 129 N. C., 459. We said in Beach’s case that “a railroad track is intended for the running and operation of trains, and not for a walkway, and the company owning the track has the right, unless it in some way restricted that right, to the full and unimpeded use of it. The public have rights as well as the individual, and usually the former are considered superior to the latter. That private convenience must yield to the public good and public accommodation is an ancient maxim of the law. If we should for a moment listen with favor to the argument and eventually establish the principle that an engineer must stop or even *96slacken bis speed until it may suit tbe convenience of a trespasser on tbe track to get off, tbe operation of railroads would be seriously retarded, if not practically impossible, and tbe injury to tbe public might be incalculable. Tbe prior right to tbe use of tbe track is in the railway as between it and a trespasser who is apparently in possession of bis senses and easily able to step; off tbe track.”

It appeared in High v. R. R., supra,, a leading case on this subject, which has been approved repeatedly, that a woman wearing a long poke-bonnet, which totally obstructed her vision, was walking on a side-track, supposing that tbe approaching train would take tbe main track, “as they usually did,” but it so happened that on tbe particular occasion it did not, but used tbe side-track, and it was held to be clear that she could not recover, as she bad no right to speculate on the course tbe engine would take. This is what tbe Court said with reference to tbe facts, which are in every essential respect like those we have here: “If tbe plaintiff bad looked and listened for approaching trains, as a person using a track for a footway should in tbe exercise of ordinary care always do, she would have seen that tbe train, contrary to the usual custom, was moving on tbe siding. Tbe fact that it was a windy day and that she was wearing a bonnet, or that tbe train was late, gave her no greater privilege than she would otherwise have enjoyed as licensee; but, on tbe contrary, should have made her more watchful. There was nothing in the conduct or condition of tbe plaintiff that imposed upon tbe engineer, in determining what course be should pursue, tbe duty of departing from tbe usual rule that tbe servant of a company is warranted in expecting licensees or trespassers, apparently sound in mind and body and in possession of their senses, to leave tbe track till it is too late to prevent a collision,” citing Meredith v. R. R., 108 N. C., 616; Norwood v. R. R., 111 N. C., 236. And those cases fully sustain tbe correctness of tbe proposition. They both bold that when on tbe track, tbe absolute duty of tbe pedestrian is to look and listen, if be can see and bear, and it is not at all modified by tbe fact of its being a side-track instead of tbe *97main line. The public could not be. safely and adequately served upon any other principle. If engineers must stop their trains to await the pleasure or convenience of foot passengers in leaving its tracks, when they can step off so easily and avoid injury and not obstruct or retard the passage of trains, the company cannot well perform its public duty as a carrier, and the public convenience, though superior and of prior right, must give way to private interests, contrary to the just maxim of the law.

In Meredith’s case the party injured was on the side-track, and not expecting the train to run on that track, but on another. In this connection let it be said that the same principle applies to trespassers and licensees. It was said in Meredith’s case: “Actual or implied license from the railroad company to use the track as a footway would not relieve him from the consequences of failing to exercjge ordinary care. The license to use the track does not carry’"with it the right to obstruct the road and impede the passage of trains,” citing McAdoo v. R. R., 105 N. C., 140. "We may also remark that all of those cases hold that the speed of the train can make no difference, because the pedestrian, if he exercises due care, can escape danger as well in the one as in the other. High v. R. R. and McAdoo v. R. R., supra. But Glenn v. R. R., 128 N. C., 184, is also decisive of the question. It is another case where the plaintiff stepped from one track to a side-track, thinking that he was safe there, as the train would not run on that track, and therefore he turned his back to the approaching train, which he knew was coming, as he heard its whistle, and did not look or listen. Held, that he could not recover. This Court unanimously said: “The railroad track itself was a warning of danger, made imminent by the approaching train. It was then his duty to keep his 'wits’ about him and to use them for his own safety. He knew or ought to have known that he was a trespasser, and it was his duty to have gotten out of the way of the train. The defendant was under no obligation to stop its train at the sight of a man on its track.” The Court further said that it was apparent to the engineer that the plaintiff was in full possession of his fae-*98ulties and could take care of himself, and tbe engineer bad tbe right to presume tbat be would leave tbe track in time to avoid tbe injury. “Tbat be did not do so was bis own fault, and be should suffer tbe consequences of bis folly.” The doctrine of tbe cases already cited and decided in this Court has been firmly established in other jurisdictions, and notably in B. B. v. Houston, 95 U. S., 697, where it is said tbat a person using tbe track of a railroad company must look and listen, and any failure to do so will deprive him of all right to recover for any injury caused thereby. “A party cannot walk carelessly into a place of danger,” said tbe Court in tbat case. See also R. R. v. Hart, 87 Ill., 529; Morgan v. R. R., 116 C. C. A. (196 Fed. Rep., 449); Kinnare v. R. R., 57 Ill., 153; White v. R. R., 73 N. T. Suppl., 827; Smith v. R. R., 141 Ind., 92; Boyd v. R. R., 50 Wash., 619; Rich v. R. R., 31 Ind. App., 10.

This case is stronger for defendant than any of those last cited, because here tbe intestate and bis friend knew tbat tbe train was waiting at tbe station and tbat tbe trains passed at tbat point, this being tbe schedule time. They were, therefore, in-just as much'danger as if they bad been on tbe main track. It is almost incredible tbat men will take so many chances under such circumstances. Tbe cases *in our courts also bold tbat neither the fact of an engine being on tbe south siding and exhausting steam, nor tbe speed of tbe oncoming train, which was not, in this case, at all excessive, can make any difference. Syme, McAdoo, and High cases, and R. R. v. Houston, supra. Tbe diagram accompanying tbe ease would indicate tbat tbe speed of tbe train was slow. It was their plain duty, .both by law and tbe instinct of self-preservation, .not. only to listen, but to look for tbe train, and they would have seen and beard it, if they bad done so, as it was seen and beard by others in no better position for tbat purpose than they were; and yet plaintiff’s witness, S. W. Cannon, says they did not do so, but walked along tbe track regardless of their personal safety. R. J. Hodges testified tbat if they bad known tbe train was coming and bad looked, they could have seen it at tbe bridge 800 yards *99distant. According to the uniform decisions of' tbis Court, tbis was negligence on tbéir part, which was the proximate cause of the intestate’s death. The nonsuit, therefore, was proper.

Affirmed.