#### ALMA J. GRIFFIN, Administratrix of J. J. GRIFFIN, Deceased, v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 7 October, 1914.)

Railroads— Headlights— Negligence — Pedestrians—Trespassers — Trials — Evidence—Questions for Jury.

It is negligence for a railroad company to run its train on its main line at niglit without a headlight on the forward end of the train, and it is responsible in damages for an injury thereby proximately caused to a pedestrian, whether he at the time was a licensee or trespasser; and -where the evidence tends to show that the plaintiff’s intestate was seen walking upon the defendant’s track at night, where pedestrians were accustomed to walk, going in a certain direction, and that soon thereafter the defendant’s train was seen running there in the same direction, and the intestate was found the next morning mutilated on the track in such position as to indicate that he had been killed by the defendant’s train, it is sufficient to be submitted to the jury upon the issue as to defendant’s negligence, leaving the defense of contributory negligence available to the defendant under the surrounding circumstances.

Appeal by defendant from Peebles, J., at February Term, 1914, of IIaRNEtt.

*625Civil action. ' Tbe following issues were submitted to the jury:

1. Was plaintiff’s intestate killed by the negligence of the defendant? • ■

2. Did the plaintiff’s intestate, by his own negligence, contribute to his own injury?

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

W. A. Townsend, E. F. Toung, and R. L. Godwin for plaintiff.

George M. Rose, J. G. Clifford for defendant.

BbowN, J.

At the close of all the evidence, the court being of the opinion that there was no evidence of negligence of the defendant, and the court having intimated that it would charge the jury upon all the evidence to answer the first issue in favor of the defendant, the plaintiff, in deference to this ruling of the court, excepted and submitted to a nonsuit and appealed. ■

The plaintiff’s evidence tends to prove that on the night of 21 July, 1912, some time between 3 o’clock a. m. and morning, the plaintiff’s intestate was killed by one of the defendant’s trains' near the corporate limits of the town of Dunn. The defendant’s railroad runs almost north and south through the town of Dunn and plaintiff’s intestate resided about 1 mile south of the corporate limits of the town and near the defendant’s railroad. Plaintiff’s intestate was last seen between 3 and 4 o’clock a. m. on the night of 21 July, 1912. He was then in an intoxicated condition, going in the 'direction of his home, walking along the track of the defendant railroad company. He called at the house of Ed. Smith and asked for water, and after getting the water, left, walking along the railroad track going south in the direction of his home.

A few minutes thereafter a freight train passed, coming from the south, going north. This train was without any lights. The train had two engines and the front one was running backwards with no headlight. The body of the plaintiff’s intestate was found next morning a short distance south of Ed. Smith’s horise, lying upon defendant’s track in a badly mangled condition. The tracks of the defendant company were level and straight for nearly a mile in each direction from the place where deceased *626was killed, and tbe tracks at tbis place were nxucb used as a common footway by tbe traveling public, botb day and nigbt.

It is negligence upon tbe part of a railroad company to run its engines along its tracks, and especially its main line, without a beadligbt wbicb will cast its light upon tbe track in tbe direction in which' tbe train is going — is negligence not only according to tbe common law and a multitude of decisions in tbe courts of tbis country, but it is made so by statute. Tbe law requires a railroad company not only to equip their engines with headlights, but headlights of a certain kind and intensity. Powers v. R. R., ante, 599.

Tbe learned counsel for tbe defendant, Mr. Clifford, very candidly admitted on tbe argument that tbe circumstances in evidence of tbis ease are amply sufficient to go to tbe jury and to justify a finding that tbe plaintiff’s intestate was killed by tbe engine hereinbefore mentioned. That being true, we have tbe facts in evidence that tbe engine was without any beadligbt; furthermore, that it ran over and killed tbe intestate. Tbis admission was very properly made, because it is patent that tbe intestate was killed by tbe defendant’s engine, as bis bead was severed from bis body and was found between tbe rails of tbe track. We have, therefore, in evidence botb tbe negligence and tbe injury.

Tbe position contended for, that tbe railroad company did not owe tbe intestate any degree of care except not to willfully and wantonly injure him, cannot be maintained. It is immaterial whether tbe intestate was a licensee or a mere trespasser. Tbe defendant owed it to him and to all other persons, whether on tbe track rightfully or wrongfully, to have a beadligbt upon its engines in order that tbe engineer may be enabled to discover, not only human beings, but any obstruction upon tbe track, and tbis is not only for tbe protection of tbe passengers and employees of tbe defendant, but for tbe protection of all persons who may for any reason be on tbe track.

While such duty is incumbent upon tbe railroad company, tbe omission of it does not always excuse the licensee or trespasser. It is always incumbent upon them to keep a lookout and to exercise reasonable care for their own protection.

*627Tbe defendant is not barred under the facts of this case from offering evidence tending to prove that the intestate was guilty of contributory negligence, himself. Hill v. R. R., ante, 592.

There is evidence in the record from which the jury may find, if they see fit, contributory negligence upon the part of the intestate, but the evidence is not of that character as will justify the court in any view of it to sustain a motion to nonsuit upon that ground. Besides, his Honor did not base his ruling upon contributory negligence, but solely upon the idea that there was no evidence of negligence upon the part of the defendant, and that he would so charge the jury.

For this error there must be a

New trial.