#### W. H. MERONEY v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY.

(Filed 27 May, 1914.)

1. Railroads — Backing Trains — Warning — Negligence Per Se — Trials.

It is negligence per se for tlie enqployees on a railroad freight train to back its tr'ain upon or cross a street crossing its track in a thickly populated portion of the town, without some one on the front bos car to give notice of its approach and to signal the threatened danger to pedestrians, and it is actionable when injury is thereby proximately caused.

2. Same — Contributory Negligence — Issues—Harmless Error — Appeal and Error.

The plaintiff, with the knowledge of defendant railroad company’s employees, had for some time been engaged at the defendant’s depot in directing his team driver in removing freight which had arrived over defendant’s road. At this place a public street crossed the railroad’s main and side tracks, on the latter of which two empty and detached box cars had stood for quite a while. Plaintiff was momentarily standing in the street upon this side-tradk, giving directions- to his driver, when, without .notice or warning, defendant’s employees attempted to attach these box cars to the engine, and the cars, being without brakes on, ran down upon the plaintiff, to his injury. The evidence held sufficient .upon the issue of defendant’s negligence, and the submission of the issue of contributory negligence to the jury was not error of which defendant could complain.

Appeal by defendant from Garter, J., at January Term, 1914, of Cherokee.

M. W. Bell and Dillard & Ilill for plaintiff.

Witherspoon & Witherspoon, D. W. Blair, and B. B. Norvell for defendant. ,

*612Clabic, C. j.

This is an action for personal injuries caused by the negligence of the defendant. The plaintiff was unloading a car of fertilizers on tbe side-track in Murphy. Tbe street crossed tbe main line and tbe side-track of tbe defendant. On tbe day of tbe injury a large number of teams were using tbe street and crossing botb tracks, of wbicb tbe engineer and conductor of defendant’s train bad knowledge. Tbe plaintiff in looking after tbe delivery of fertilizers to bis customers, passed along tbe street. -"When be got to tbe main line, be stopped a moment on tbe track, but in tbe street, to speak to one of tbe wagoners. Near by were two box ears of tbe defendant wbicb bad been standing on tbe main line all day, witb tbe end of tbe box car nearest to tbe plaintiff just on tbe edge of tbe street. At tbat instant tbe "defendant’s engineer, without any notice or. warning, backed bis train against tbe box cars, whose breaks were not apiilied, witb tbe result tbat tbe box cars were driven into tbe street, striking the plaintiff, who was caught between tbe car and tbe wagon, shoving him and tbe wagon up a steep bank several -feet, whereby tbe plaintiff was seriously injured.

Tbe two box cars did not have tbe brakes applied, though the street was crowded tbat da'y, and tbe defendant’s agents knew tbat tbe plaintiff and other persons were on its yard unloading the fertilizers. Tbe defendant was negligent in moving its train backwards, striking the box cars and driving them across tbe public street without giving notice.

This has been held in so many cases tbat it is supererogation to repeat it. Among tbe cases directly in point are Purnell v. R. R., 122 N. C., 832, where tbe engine was pushing backwards a train of box cars. This Court said: “As we understand tbe matter, there must be botb a man and a light at night and a man and a flag in tbe day. . . . This man called a flagman is in- control of this backing train. Tbe train is mpved and stopped at bis discretion. This is done in tbe daytime by tbe use of a flag, and at night by tbe use of tbe light. By these means be informs tbe man in control of tbe engine wben and bow to move tbe train.” Among many eases to the *613same purport are Pharr v. R. R., 119 N. C., 756; Bradley v. R. R., 126 N. C., 741; Jeffries v. R. R., 129 N. C., 236; Lassiter v. R. R., 133 N. C., 244.

This case- showed greater negligence on the part of the defendant than Edge v. R. R., 153 N. C., 213. In that case an employee of defendant was injured while crawling across the track underneath the coupling of two box' cars. Just before going into this place of danger he had seen an engine standing-near the car with steam up and the engineer looking towards him. The Court held that it was a question for the jury whether defendant could have avoided injuring the plaintiff by the use of ordinary care. In Hudson v. R. R., 142 N. C., 198, it was held culpable negligence where the defendant cut loose a car on a spur track ou a down-grade, whereby it crashed into five other cars with sufficient force to drive them, as in this case, causing the death of the plaintiff. In Beck v. R. R., 146 N. C., 458, it was , held that the Court had over and over again declared that to run an engine suddenly backward without warning, or signal, or any one on the rear of the train to give notice, was culpable negligence.

•’ The court, therefore, properly refused'to nonsuit the plaintiff. Indeed, the defendant’s counsel said that the case depended entirely upon the contributory negligence. ¥e do not find any errors in the refusal to give the prayers in that aspect. It was not negligence in the plaintiff to step upon the track of the defendant where he was injured. He was going about his business; was in a public street; had stoj>ped for only a brief period to speak to a wagoner who was engaged in unloading the car of fertilizers. The conductor and- engineer knew that he was there, and the injury was caused by the sudden backing of the engine against the two box cars without warning or notice, whereby said cars were driven backwards, causing injury to the plaintiff.

The learned counsel for the defendant strenuously insists that the plaintiff was guilty of contributory negligence because he did not “stop, look, and listen.” But this was not an occasion to call for the application of that* maxim. He was not *614struck by a passing train, nor was it negligence in bim to stop for a moment or two to speak to tbe wagoner. He bad no cause to think tbat tbe cars would be driven backward by the shifting engine without signal or notice. Indeed, we see no evidence of contributory negligence; but tbat issue was submitted to the jury and found against the defendant.

No error.