#### BERNICE R. BAGWELL and Husband v. SOUTHERN RAILWAY COMPANY et al.

(Filed 23 December, 1914.)

1. Railroads — Excessive Speed — Public Crossings — Negligence—Automobiles —Guests — Last Clear Chance — Trials—Issues—Complex Instructions— Appeal and Error.

In an action to recover damages of a railway company caused by its. train in running upon an automobile in which the plaintiff was riding as a guest, at a public crossing, where the driver of the machine was attempting to cross at the time, there was evidence submitted to the jury upon the question of whether the defendant’s train was being run at an unlawful speed, but the case was tried upon the theory, (1) that the defendant had failed to give notice of its approach, and (2) that the engineer thereon, by the exercise of proper care, could have stopped the train in time to have avoided the injury after he had seen or should have seen the plaintiff’s danger. The evidence as to the excessive speed of the defendant’s train was not relied on as a distinct ground of action, but in support of the other issues; and construing the charge as a whole it is Held, in this case, that the principles of law were correctly charged by the court as applicable to the evidence in their relation to the issues of negligence and last clear chance, and not objectionable as making the plaintiff responsible for any negligent act of the driver of the ear; and it is Further held, that a new trial will not be awarded on a theory that a charge was more complex than necessary and that the jury did not understand it.

2. Railroads — Negligence — Warnings — Last Clear Chance — Automobiles— Driver — Concurrent Negligence — Imputed Negligence.

Where the guest in an automobile driven by another is injured while attempting to cross a railroad track at a public crossing by a collision with the defendant’s train, and there is conflicting evidence as to whether the injury was caused by the driver of .the machine in attempting to cross at the time, or that of defendant’s employees on the train in failing to give proper signals or warnings of its approach, or reasonably endeavoring to stop the train after seeing, or after they should have seen, by keeping a proper outlook, the plaintiff’s danger, the liability of the defendant in damages for the consequent injury is properly made to depend upon whether the injury was the proximate cause of its own negligent acts, if established, or concurred with the negligent acts of the driver of the machine, if any, in producing the result, eliminating the question of plaintiff’s contributory negligence upon the ground that the negligence of the driver of the machine cannot be imputed to the plaintiff. Orampton v. I vie, 126 N. C., 894, cited and applied.

Appeal by plaintiff from Adams, J., at May Term, 1914, of Meck:-LENBURG.

This is an action to recover damages for personal injury, caused, as the •plaintiff alleges, by the negligence of the defendant.

*612. The injury occurred at a public railroad crossing by a collision between the train of tbe defendant and an automobile which was owned and driven by Mr. J amison and in which the plaintiff was a guest.

The plaintiff offered evidence tending to prove that the defendant failed to give notice of the approach of the train to the crossing, and also, if it did give notice, that by the exercise of ordinary care the train could have been stopped in time to avert the injury.

The defendant introduced evidence tending to prove that it gave notice of the approach of the train to the crossing, and that the automobile went upon the track such a short distance in front of the approaching train that it could not have been stopped in time to avoid injury.

The jury answered the issue of negligence in favor of the defendant, and from the judgment pronounced upon the verdict the plaintiff appealed.

Morrison and McLain for plaintiff.

F. M. Shannonhouse, O. F. Mason, Manly, Hendren & Womble for defendant.

Allen, J.

No authority .is cited in the brief of counsel for appellant, for the reason that there is very little difference of opinion as to the principles of law controlling the trial of the case, the real controversy being as to the correct application of those principles, and whether his Honor gave the instructions to which the plaintiff was entitled.

The first impression is that he did not do so, and that he gave undue prominence to the negligence of Mr. Jamison, the driver of the automobile in which the plaintiff was a„guest at the time of her injury, and that the jury might infer that he intended this negligence to be imputed to the plaintiff;'but when the charge.is read and considered more carefully and as a whole, the conclusion cannot be avoided that no principle of law has been erroneously stated or applied, and a new trial cannot be ordered except upon the theory that the charge was more complex than was necessary and that the jury did mot understand it, which would be violative of our system of administering justice, which is based upon the idea that jurors are intelligent and honest. Cooper v. R. R., 163 N. C., 150.

The allegations of negligence contained in the complaint are:

1. That the crossing at which the plaintiff was injured was negligently and carelessly constructed and maintained, in that trees, bushes, and shrubbery were permitted to stand upon the banks and obstruct the view of approaching trains, and in that the defendant failed to place and keep ballast between the rails.

2. That at the time of the plaintiff’s injury the defendant was running its train at an unlawful rate of speed.

*6133. That the defendant negligently failed to blow a whistle or ring a bell or give any warning of the approach of its train to the crossing.

4. -That the defendant negligently failed to stop its train after discovering the plaintiff upon the crossing, or after it could have discovered her by the exercise of ordinary care.

No evidence was introduced in support of the first allegation of negligence, and while evidence was introduced that the train was run at a high rate of speed, this was not relied on as a distinct ground of action, but in support of the third and fourth allegations.

The case was therefore tried upon the theory that the defendant had failed to give notice of the approach of its train to the crossing, and that after the automobile was upon the crossing the defendant, by the exercise of ordinary care, could have discovered the perilous position of the plaintiff and could have stopped its train in time to avert the injury, and evidence was introduced in support of both of these contentions.

Upon the first of these his Honor charged the jury as follows:

“What duty did the Southern Eailway Company owe to those using the crossing?

“It is admitted that the crossing at which the injury occurred was a public grade crossing, at the intersection of the railroad and the public highway, and that it was habitually used by the public. If you find the facts to be as admitted in this respect, it was then the duty of the Southern Eailway Company, through its employees in charge of the train, as the train approached the crossing, and before it approached the crossing, to use due care in the operation ;of its train; due care meaning such care as was commensurate with the dangers reasonably to be anticipated in the operation of the train at or near that place.

“It was its duty to use due care in giving timely warning of the approach of the train, by signals, or by a signal, by sounding the whistle or ringing the bell at the usual and proper place, in order that those approaching the crossing might know that the train was coming. It was the duty of the defendant, the Southern Eailway Company, to keep a careful lookout for danger, and to exercise due care, as already suggested, in the general management and operation of its train; and if you find from the evidence, and by its greater weight, that the Southern Eailway Company failed to perform this duty, you will find that it was negligent; and if you further find that this negligence was the proximate cause of the plaintiff’s injury, you will answer the first issue ‘Yes.’

“In the absence of statutory regulation, the mere fact that the train was moving at the rate of 30 miles an hour, if you find from the evidence that the train was moving at this rate of speed, would not necessarily be negligence per se; but in passing upon the question whether the Southern Eailway Company was negligent in the operation of the train, you may *614consider evidence tending to slow whether the crossing was habitually used by the public, the extent of its use, the density of the population at or near that place, the rate of speed at which the train was moving,, whether the proper signal was given, together with other evidence — all with a view to finding whether the Southern Railway Company used such care as was commensurate with the dangers reasonably to be anticipated in approaching the crossing; and if you find, by the greater weight of the evidence, that it did not exercise such care, you will then find that it was negligent; and if you further find that in consequence of such negligence the plaintiff was injured, and that the negligence of the Southern Railway Company was the proximate cause of her injury, you will answer the first issue ‘Yes.’ ” And upon the second: “It was the duty of the engineer to keep a careful lookout. "Was it the duty of the fireman to do so % .

“If you find from the evidence that the engineer, by reason of a curve in defendant’s track, and the obstruction of the engine, the smokestack, or otherwise, could not keep a lookout for persons on or near the crossing, or in a perilous situation, it was then the duty of the Southern Railway Company to have its fireman or other person to assist the engineer in keeping such lookout. It was the duty of the Southern Railway Company to keep a careful lookout for danger, the degree of care being such as a prudent person would exercise in endeavoring to perform that duty. There is no contention, of course, that it was the duty of the railway company to stop its train, merely for the purpose of permitting a traveler, attempting to go across the track, to pass in front 'of the train. That is not the question here. The question is whether, after the plaintiff was in a position of peril, she was seen, or could have been seen by the defendant’s employees, and whether, by the exercise of reasonable and ordinary care, the engine could have been stopped or slackened to such an extent that the injury could have b,een averted.

“If you find from the evidence that Mr. Jamison drove the automobile upon the track of the defendant, at the defendant’s crossing, and that the ear stopped upon the track, or whether you find that he was negligent or not, if you further find that the plaintiff, as a guest of Mr. Jamison, riding in the automobile, was thereby placed in a perilous situation from threatened contact with the defendant’s train, and that the defendant’s servants in charge of the train saw, or by the exercise of ordinary care could have seen, her perilous situation, and averted the injury by any available means reasonably consistent with the safety of the train and its crew, it was then the duty of the Southern Railway Company to make use of such available means, to give the proper warning or signal, to lessen the speed of the train if reasonably necessary, and even to bring it to a stop, if reasonably necessary and practicable, to avoid the injury; *615to use all available means to avert tbe injury, short of putting in danger tbe safety of tbe train and its crew; and if you find tbat tbe Southern Eailway Company, under these circumstances, failed to perform this duty, you will then find tbat it was negligent; and if you further find tbat this negligence was tbe proximate cause of tbe plaintiff’s injury, you will answer tbe first issue ‘Yes.’ ”

Tbe charge upon tbe second allegation is as favorable as tbe plaintiff was entitled to, and tbe first is in accord with our authorities.

In Edwards v. R. R., 132 N. C., 100, tbe Court- says: “It is undoubtedly true tbat tbe engineer must give such a signal as will be reasonably sufficient to warn persons on highways, tbat intersect tbe track,, of tbe coming of tbe train, and this must be done by ringing tbe bell or blowing tbe whistle, as tbe peculiar circumstances of tbe case may suggest to be tbe proper method, and tbe failure of tbe engineer to give such a,signal would be evidence of negligence. Hinkle v. R. R., 109 N. C., 473; 26 Am. Rep., 581. Tbe warning must be reasonable and timely, but what is reasonable and timely warning must depend upon tbe conditions existing at tbe time in tbe particular case, and we are not by any means prepared to say tbat the law requires in every case that tbe signal should be given in any special way. We know of no such bard and fast rule as tbat laid down by tbe trial judge in this case. Tbe bell and tbe whistle are tbe appliances provided for tbe purpose of giving signals, and one or tbe other, as tbe case may seem to require, must be used for tbat purpose, and, in cases of emergency or when tbe peculiar situation seems to demand it, there should perhaps be a resort to tbe use of both; but it must be left to tbe jury to decide, upon proper instructions of tbe court as to tbe law, what is tbe proper signal in any given case.”

His Honor also instructed tbe jury that there was no evidence tbat tbe plaintiff was guilty of contributory negligence, and tbat if Mr. Jamison was negligent, bis negligence could not be imputed to her, and tbe only view in which tbe jury was permitted to consider tbe negligence of Mr. Jamison was tbat if it was “tbe sole, only, proximate cause of tbe injury, tbat tbe plaintiff could not recover,” and this, not upon tbe ground tbat it showed contributory negligence of tbe plaintiff, but if the negligence of Mr. Jamison was tbe sole, proximate cause, then tbe negligence of tbe defendant would not be proximate. In other words, there was evidence upon tbe part of tbe defendant tending to prove tbat it gave timely and reasonable notice of tbe approach of tbe train to tbe crossing, and tbat tbe automobile went upon tbe track so short a distance in front of tbe approaching train tbat it could not have been stopped by tbe exercise of ordinary care in time to avert tbe injury, and if so, tbe negligent act of driving tbe car upon tbe track would be tbe cause of tbe injury and there would be no negligence on tbe part of tbe defendant.

*616His Honor further charged the jury: “If you find from the evidence that the Southern Railway Company was negligent, and that Mr. Jami-son also was negligent, and that their negligence concurred, and that their concurrent negligence was the proximate cause of the plaintiff’s injuryt you will, in that event, find that the railway company is liable, and your answer to the first issue would be ‘Yes.’ ”

The contentions of the plaintiff were stated very fully and at length in the charge to the jury, and the paragraphs which we have quoted from the charge show that correct legal principles were laid down for their guidance.

The .case was tried under the authority of Crampton v. Ivie, 126 N. C., 894, and upon the principles to be found in the interesting -and valuable article on Automobiles in 2 Ruling Case Law, particularly at page 1.205 et seq., which deals with injuries at railroad crossings.

"We have carefully examined the exceptions relied on, thirty-two in number, and find no error.

"We do not consider them seriatim,, because it would consist largely in comparing instructions prayed for with corresponding paragraphs of the charge, which would require a reproduction of all of the requested instructions and the whole of the charge, and would do no good.

No error.