#### RAYMOND LEE v. THE SOUTHERN RAILROAD COMPANY.

(Filed 24 November, 1920.)

1. Instructions — Negligence—Contributory Negligence.

Only in rare and exceptional instances does tbe negligence or contributory negligence, in an action for damages, depend on a single fact, but it is usually determined from all tbe relevant and surrounding circumstances ; and tbe practice of making single instances tbe basis of instructions tbereon, to tbe jury, is disapproved, altbougb sometimes permissible.

2. Railroads — Negligence—Contributory Negligence — Obstructed View— Smoke — Matters of Law — Courts—Trials.

Upon tbe evidence of plaintiff, a boy 15 or 16 years of age, in bis action against a railroad company, that after waiting at tbe end of a string of box-cars on a lateral spur track to two main-line tracks of tbe defendant, for tbe passage of a freight train on one of the main lines, which threw out great quantities of smoke and cinders in passing, and while enveloped in smoke so be could not see, be attempted to cross tbe tracks and was immediately struck and injured by another train going in an opposite *414direction, from the train throwing, out the smoke, on-the other main-line track, when he knew that defendant’s trains were constantly running there: Meld, the plaintiff, in going, as if blindfolded, upon the track, under the circumstances, was guilty of contributory negligence, the proximate cause of the injury, irrespective of whether the defendant’s engineer, on the train which caused the injury, rang the bell or sounded the whistle as his train approached.

Clark, C. J., dissenting.

Appeal by plaintiff from Bay, J., at tbe June Term, 1920, of Roce-INGHAM.

This is an action to recover damages by the plaintiff for injuries sustained by him in consequence of the alleged negligence of the defendant. The defendant denies negligence, and pleads contributory negligence.

In the southern part of the town of Reidsville the defendant had and maintained, at the date in question, three tracks only a few feet apart, all of which are parallel and run practically north and south. The ■easternmost track is the main line going north. The one just west of and next to that is the main line going south, and the third one on the west is an industrial or sidetrack. The injury complained of was sustained ■practically in front of the office of the Edna Cotton Mill. At this point, and some distance north and south, there is a public highway just west of and adjacent to the roadbed of the defendant, and another public highway just east of and adjacent to the defendant’s roadbed, both highways paralleling the defendant’s tracks. In front of the office of the Edna Cotton Mill, which is on the west side of the defendant’s tracks, the defendant’s tracks are on an embankment some three feet high; on the east the defendant’s road is practically level with the public highway. Some seventy-five yards north of the place of the collision between defendant’s train and plaintiff, a public highway crosses the defendant’s tracks, and some one hundred yards south of the point of injury there is •another highway crossing defendant’s tracks. In front of the office of the Edna Cotton Mills there are wooden steps, leading from the public highway to and upon defendant’s roadbed. These steps had been maintained for more than ten years, and they had been renewed in the meantime one or more times, and over these steps and across defendant’s three tracks, many persons were accustomed to go every twenty-four hours, ■east and west as occasion offered. On the day in question, to wit, 11 August, 1917, the plaintiff, being on the west side of the defendant’s tracks near the point of the injury, had occasion to go across said tracks to a store on the east side; that he approached the defendant’s roadbed and tracks at a point some distance north of the steps above referred to; that on the defendant’s roadbed or embankment there was a path running north and south; that there was a string of freight cars standing on the *415sidetrack above referred to, and in consequence of tbe presence of these cars, tbe plaintiff, after getting on tbe embankment of tbe defendant’s road, bad to and did walk south along the side of these freight cars to or about tbe steps above referred to, as tbe presence of these cars, according to plaintiff’s evidence, prevented him from crossing at tbe point where be got on defendant’s embankment or roadbed, until be passed the end of tbe boxcars, and when be got to tbe south end of tbe string of cars or a few feet north of tbe steps above referred to, there was a long freight train going north over tbe easternmost track; that at this point and for some distance in either direction tbe grade going north was heavy, and as a result tbe engine pulling tbe freight train going north was exhausting heavily and' throwing out great clouds of very dense smoke, which settled down between the train going north and the string of boxcars above referred to, and over and around where the plaintiff had stopped, at or near the south end of the string of boxcars, to await the passing of the northbound freight train. After the caboose of the northbound freight train had passed, the plaintiff, who had been standing very near the steps for some time, waiting for the said train to pass, passed in an easterly direction beyond the end of the string of boxcars; that there he looked in both directions, that is to say, south and north, to see if there was any approaching train; that he saw none; that the smoke at this particular time and place surrounding him was quite dense; that he heard no signal, such as the whistle or bell, or other signal of like character, and he was near enough to have heard such had any been given for the approach of a train to the public crossing above referred to as being seventy-five yards north of where the plaintiff was standing, nor for the approach to the crossing in front of the mills, nor for the approach to the public crossing some one hundred yards south of where plaintiff was standing^ and seeing no train approaching, and hearing no signal, plaintiff started to cross the tracks of the defendant in an eastern direction, and as he approached the tracks, next to the side or industrial track, the front of the engine of the freight train proceeding from the north struck the plaintiff and seriously injured him, from which he has never recovered. The plaintiff at the time of the injury was some fifteen or sixteen years of age. Both the plaintiff and the witness, Cheshire, stated that they heard no signal given, nor did they hear the approach of the train.

There was a space of a little more than eight feet between the sidetrack and the main line track.

The plaintiff, among other things, testified as follows: “I had passed over the sidetrack and stepped upon the southbound track, and that’s where it hit me; I couldn’t see it for the smoke and dust and the boxcars. There was lots of smoke and dust that the train had raised. I could’ *416not see tbe train for these boxcars; and after passing them, I looked to the north and couldn’t see the train, and I did not hear it. I waited until the northbound train had passed before I started to go across, and still the smoke was settled around there so I could not see. If the box-ears were taken away, I could not have seen the train; I might have seen it before I got up there. It was the smoke and the boxcars, too, that kept me from seeing the train. There was a lot of smoke there and that kept me from seeing the train when I stepped from behind the box-ears. I walked across slow; Hooked down the track as soon as I stepped out from behind the boxcars; I walked straight across; the train was so close to me it hit me by the time I walked the distance between the sidetrack and the southbound main-line track. I could not see it for the smoke. I had beemboarding by the side of the railroad for a week, and freight and passenger trains pass up and down those main-line tracks all during the day and night; I never counted them, they pass there often. Yes, sir; I stepped right up there and couldn’t see the train for the smoke; I could have heard it if they had rung the bell; I was trusting entirely to hearing the bell. I looked for a train. Sure I trusted to the whistle; I didn’t trust altogether to hearing the whistle; T trusted • some to my eyes, but I couldn’t see anything. I could not see the engine on the track in front of me for the smoke. I had not started across over there to jump on there and ride that train to the depot. It was a clear day.”

His Honor, among other things, charged the jury as follows:

“1. If the jury find as a fact from the evidence that the boxcars referred to were from fifty to seventy feet north from the steps, then I charge you that the presence of the boxcars is not material upon any aspect of this case; that is, that the presence of the boxcars does not tend to show negligence on the part of the defendant, nor is the- plaintiff thereby in any degree relieved.of the duty to exercise the usual-care on account of the presence of the said boxcars.

“2. Unless you shall find as a fact from the evidence that the smoke was so thick and heavy that the train that struck the plaintiff could not be seen by him, then I charge you to answer the second issue ‘Yes,’ even though you may find as a fact that there was no signal given of the approach of the train.

“3. Unless you find as a fact from the evidence that the boxcars were so close to the steps as to interfere with the sight of the approaching train, or that the smoke was so thick and heavy that the train could not be seen by the plaintiff, then I direct you to answer the second issue ‘Yes,’ even though there was no signal or warning given of the approach of the train.

*417“4. It was tbe duty of tbe plaintiff to use botb bis sense of sight and sense of bearing, and tbe law does not permit him to rely altogether upon tbe expectation that tbe train would give a warning of its approach by bell or whistle.”

Tbe plaintiff excepted to each instruction.

Tbe jury answered tbe first issue as to negligence in favor of tbe plaintiff, and tbe second as to contributory negligence in favor of tbe defendant.

There was a judgment for tbe defendant, and tbe plaintiff appealed.

P. T. SUers and King, Sapp & King for plaintiff.

Manly, Hendren & Womble for defendant.

AlleN, J.

It is rare that negligence or contributory negligence is dependent on a single fact, and, on tbe contrary, it is to be determined by a consideration of all tbe relevant surrounding circumstances.

One fact, separated from others, may have little or no bearing, and by tbe process of elimination, all ground for tbe contention that negligence exists on tbe part of tbe plaintiff or defendant may be removed, when, if all tbe circumstances are considered together, tbe inference of negligence is manifest.

We do not, therefore, approve tbe practice of making single instances tbe basis of instructions, although sometimes permissible, but if there is error in tbe instructions given by tbe court, and tbe subject of exception, it is immaterial, because, in our opinion, tbe plaintiff is guilty of contributory negligence on bis own evidence, as be admits that be left a place of safety at tbe end of tbe boxcars and walked a distance of eight feet, on a clear day, on to a track, where be knew trains were constantly passing, when be was enveloped with smoke, an obstruction that would be removed in a moment, and when he says “I waited until tbe northbound train bad passed before I started across, and still tbe smoke was settled around there so I could not see,” and again: “I walked across slow; I looked down tbe track as soon as I stepped out from behind tbe boxcars; I walked straight across; tbe train was so close to me it bit me by tbe time I walked tbe distance between tbe sidetrack and tbe southbound main-line track. I could not see it for tbe smoke.”

One who voluntarily goes on a railroad track, where tbe view is unobstructed, and fails to look and listen, cannot recover damages for an injury, which would have been avoided if be bad done so.

Tbe duty to look and listen may be qualified by obstructions and other circumstances, and when these appear the question of contributory negligence is ordinarily for tbe jury.

He is not required to look continuously when be has been misled by tbe failure of tbe company to give notice of tbe approach of its train, *418or where bis attention is rightly directed elsewhere, and he cannot be expected to look in both directions at the same time.

These principles are established by Cooper v. R. R., 140 N. C., 209; Inman v. R. R., 149 N. C., 123; Farris v. R. R., 151 N. C., 483; Fann v. R. R., 155 N. C., 136; Johnson v. R. R., 163 N. C., 431; Penninger v. R. R., 170 N. C., 475; Perry v. R. R., at this term, and in other cases, but they are not determinative of the present appeal, because in all of them, where obstructions were present, they were not temporary and fleeting, while in this case the plaintiff was prevented from seeing the approaching train by the smoke of another train, which would have been lifted or removed in a moment of time.

If the plaintiff had a bandage across his eyes the law would not permit him to walk on a track, where he might reasonably expect a train, without removing it, and the smoke was as effective as the bandage would be in obscuring or blotting out the vision, for the time, and almost as easily and speedily gotten rid of.

As said in Oleson v. R. R., 32 L. R. A. (Ind.), 152: “Under the circumstances, it was his duty to wait in a j>lace of safety until he could see and hear, and thus, with reasonable certainty, ascertain that no westbound train was approaching on the south track. If the obstruction had been of a permanent character, the question would be a different one, but here the smoke was, as he knew, but a temporary obstruction; and, if he had but waited a few moments, he could have seen the approaching train, and avoided the injury.”

In West Keresy Railroad Co. v. Ewan, 55 N. J. L., 574, the plaintiff was held to have been negligent in going upon a railroad track while the noise and smoke of a train that had just passed deprived him tem-norarily of the power to see clearly and hear distinctly. The plaintiff traveling along the street on foot in the day time came to the defendant’s intersecting railroad, which consisted of three tracks. He stopped upon the first track,'which was not in use, for a freight train going towards his left on the furthest track to pass the crossing. This train .made a “tremendous noise,” and emitted smoke which settled down upon the tracks. When the freight train had passed, then, knowing that the middle track was used for train coming from his left, he looked towards the left, and seeing nothing but smoke upon the track, and hearing no whistle or bell, he proceeded' to walk across at his usual gait, and was struck by train coming from the left on the middle track. After a recitation of these facts, the Court said: “From these circumstances it is apparent that the plaintiff, without any reason for haste, went upon the track when it was evident to him that he would neither see nor hear any train which he was aware might be approaching, and when the causes of his inability to see and hear were so fleeting that in a few *419seconds they would have gone. It seems indisputable that such conduct was negligent. In the exercise of reasonable prudence, a man could not expose his life to a peril which he knew might be imminent, if a delay of a few minutes would assure him of safety, unless impelled by some motive of extreme urgency.”

The same principle is stated by the editor and annotator in the note to Wallenburg v. Mo. P. R. Co., 37 L. R. A. (N. S.), 144, as follows: “It is negligence per se to attempt to cross a track hidden by the smoke from a passing train without waiting for a clear view. Heaney v. Railroad Company, 122 N. Y., 122; West Heresy Railroad v. Ewan, 55 N. J. L., 574; Lortz v. Railroad Company, 83 Hun., 271; Hovenden v. Railroad, 180 Pa., 244.”

The same doctrine is laid down in 22 R. C. L., 1033, and in numerous other authorities, some of which are referred to in the cases cited, and being in our opinion just and based upon reason, we must apply it.

We have come to this conclusion on the facts of this case, and after considering the different cases in our reports in which recoveries were sustained in behalf of plaintiffs, which we have no disposition to disturb.

No error.

Clare, C. J.,

dissenting: The defendant was maintaining three tracks in the street of Eeidsville. The injury of the plaintiff was caused by the defendant, and at a much-used crossing of the street from the office of the Edna Cotton Mill. On the western track there was a string of freight cars, reaching to a considerable distance north of the crossing, impeding observation of any train coming from the north down the middle track. When the plaintiff reached this much-used crossing, he found a long freight train passing on the easternmost track going north. He waited until that train had passed. He testified that then he looked in both directions, i. e., north and south, “to see if there was any approaching train; that he saw none; that he heard no signal by whistle or bell or any other signal; that he was near enough to have heard such had any been given of the approach of a train; that seeing no train approaching, and hearing no signal, he started to cross the track when an engine on a train approaching from the north, without giving any signal, struck and seriously injured him.” He says his view, of the approaching engine was obscured by the long line of cars on the western or industrial track, and that it was further somewhat obscured by the dense smoke emitted by the train going north.

If it were conceded that the plaintiff was negligent in going upon the middle track to cross until the smoke had entirely cleared away, still it has been the uniform rulings of this Court heretofore that when there is negligence on the part of the defendant, as the jury has found in this *420case, and contributory negligence by tbe plaintiff, it is error not to submit to tbe jury tbe question as wbicb was tbe proximate cause of tbe injury.

In tbis case tbe defendant was using three tracks upon tbe street. The plaintiff was crossing at a much-used crossing from tbe cotton mill, tbe knowledge of which required of tbe defendant extra care in giving signals. Tbis caution was more than usually required in tbis case, because tbe western track was occupied by a long string of freight cars standing thereon, and tbe train passing on tbe eastern track bad cast a dense volume of smoke calculated to obscure tbe aj>proacb of tbe train from tbe north on tbe middle track. Both of these facts were apparent to tbe engineer of tbe train coming from tbe north on tbe middle track, and made it incumbent upon him to sound tbe whistle, or ring tbe bell, or both. Furthermore, it was tbe grossest negligence of tbe company itself that at such much-used crossing it did not have an automatic gong, operated by tbe wheels of tbe train, nor any bars to be let down by a guard, placed at that point to protect tbe public in using such crossing.

Tbe plaintiff testified that be looked both ways before attempting to cross the middle track, and seeing nothing, and bearing nothing, be was on his way across tbe track and was struck by tbe southbound train, wbicb approached unseen and unheard. How far tbe plaintiff was guilty of negligence by proceeding without waiting until tbe string of cars on tbe track were moved or until tbe smoke bad entirely lifted, was for tbe jury to 'decide, and not tbe court. And even if be was negligent, it was for tbe jury to say whether tbe proximate cause was not tbe failure of tbe defendant to give signal by whistle and bell or gong wbicb would have prevented tbe plaintiff attempting to cross tbe track when after looking both ways be neither saw nor beard any approaching train.

This was the last cause, and therefore tbe proximate cause, of tbe injury. Besides, under tbe principle laid down, in Troxler v. R. R., 124 N. C., 191, and Greenlee v. R. R., 122 N. C., 977, tbe failure of tbe railroad to have automatic gongs and bars, at much-used crossings across a public street, was “negligence per se continuing up to tbe time of tbe injury, and therefore tbe causa cwuscms" because if used up to tbe very last moment, even when tbe plaintiff was about to step upon tbe track, tbis would have caused him to draw back and save himself. And hence the negligence of tbe defendant, as a matter of law, was irrebutable.

Long ago tbe Corporation Commission was empowered, Laws 1907, eh. 469, now O. S., 1049, to require tbe abolition of grade crossings. Tbis has not been done in tbis case, but none tbe less it was incumbent upon tbe defendant at tbis much-used crossing of a public street (where the defendant was operating three tracks) to at least install automatic *421gongs or to have a guard and bars for tbe protection of tbe public. And wben, in addition to tbe omission to do these things, tbe defendant bas obscured tbe view by a string of empty cars on tbe western track, and by a cloud of smoke from tbe passing train on tbe eastern track, and tbe engineer of tbe southbound train on tbe middle track failed to give signal of that approach by whistle or bell, it was clearly error not to leave to tbe jury tbe question as to whether such accumulation of negligent acts by tbe defendant or tbe act by tbe plaintiff was tbe proximate cause.

Furthermore, it was error to charge tbe jury that tbe presence of tbe empty ears on tbe western track, 15 feet from tbe crossing in tbe direction of tbe oncoming train was “not material upon any aspect of tbe case, and did not tend to show negligence on tbe part of tbe defendant.” Tbe plaintiff testified that tbe presence of tbe cars on tbe sidetrack impeded his Anew of tbe oncoming train. "Whether it did so or delayed tbe passing away of tbe smoke left by tbe other train, tbe presence of tbe said cars there and tbe smoke both tended to prove negligence on tbe part of tbe engineer of tbe southbound train in failing to give signal by whistle or bell, and hence were material circumstances for tbe consideration of tbe jury on tbe question of proximate cause.

Tbe judge charged tbe jury that "unless tbe smoke was so thick and heavy that tbe train that struck tbe plaintiff could not be seen by him, that they should find that tbe plaintiff was guilty of contributory negligence though there was no signal or warning given of tbe approaching train.” Without leaving it to tbe jury to say what was tbe proximate cause of tbe injury, whether this contributory negligence, or tbe multiplied acts of negligence, above enumerated on tbe part of tbe defendant, he entered judgment on such defective verdict.

Singularly enough, while the charge of tbe court instructed the jury to find tbe plaintiff guilty of contributory negligence, "unless tbe smoke was so thick and so heavy that the train was obscured and could not be seen by him,” tbe opinion of this Court affirms tbe judgment below upon the directly opposite ground that the plaintiff was guilty of contributory negligence “if be went upon the track wben tbe smoke iuas so thick and heavy that be could not see tbe train.”

Tbe plaintiff lost tbe case below by the view of tbe trial judge that unless tbe smoke was so thick and dense that be could not see tbe train the plaintiff caused bis own injury; and be loses in this Court because the majority think that if the smoke was so thick and dense that be could not see tbe train be was guilty of contributory negligence, which makes the charge erroneous.

In neither view bas tbe jury bad any chance to find tbe facts; and all consideration of multiplied instances of negligence of tbe defendant *422have been put out of sight, and in both courts it has been held as a matter of law (but for directly opposite reasons) that the plaintiff was guilty of contributory negligence, and that this was the proximate cause of his injury.