#### SADIE A. HUDSON, Administratrix of WILLIAM HUDSON, Deceased, v. NORFOLK SOUTHERN RAILROAD COMPANY.

(Filed 16 September, 1925.)

Negligence — Last dear Chance — Pleadings — Evidence — Burden of Proof — Railroads.

In an action against a railroad company to recover damages for the negligent killing of plaintiff’s intestate, a trespasser, wherein from the pleadings and evidence the issue of the last clear chance arises, the burden of proof of the issue shifts back to the plaintiff in the action.

*117Appeal by defendant from Granmer, J., at February Term, 1925, of Beaufort.

Tbis is an action to recover damages for death of plaintiff’s intestate, alleged to have been caused by tbe negligence of defendant. Tbe issues were answered by tbe jury as follows:

1. Was plaintiff’s intestate killed by tbe- negligence of defendant, as alleged? Answer: Yes.

2. If so, did plaintiff’s intestate by bis own negligence contribute to tbe said death? Answer: Yes.

3. If so, could tbe defendant, notwithstanding tbe contributory negligence of tbe deceased, by tbe exercise of reasonable prudence and proper care, have avoided killing tbe deceased? Answer: Yes.

4. If so, what damages, if any, 'is tbe plaintiff entitled to recover ? Answer': $480.

From judgment on tbis verdict, defendant appealed.

Ward & Grimes for plaintiff.

Small, MacLean & Rodman for defendant.

Connor, J.

Tbe jury having answered tbe first and second issues in tbe affirmative, plaintiff was not entitled to recover of defendant damages for tbe death of her intestate, unless, upon tbe evidence, she could invoke, successfully, tbe principle of law, upon which tbe doctrine of tbe “last clear chance” is founded. Although tbe death of plaintiff’s intestate was caused by tbe negligence of defendant, tbe right to recover damages was barred by tbe contributory negligence of tbe deceased unless, notwithstanding such contributory negligence, defendant could, by exercise of proper care, have avoided tbe injury. Such contributory negligence was relied upon by defendant as a defense to plaintiff’s action to recover damages by reason of tbe negligence of defendant; it was set up in tbe answer of tbe defendant, and, as appears by tbe answer of tbe jury to tbe second issue, was proved on tbe trial, C. S., 523. Plaintiff’s intestate was not an employee of defendant railroad company, C. S., 3467; be was struck by defendant’s .train while on its track at its intersection by a farm road. Plaintiff, to repel tbe bar to her recovery on account of tbe contributory negligence of her intestate, relied upon tbe doctrine of tbe “last clear chance,” contending that tbe jury should answer tbe third issue “Yes.” Upon tbis issue tbe court charged as follows:

> “So, gentlemen, we are considering, now, tbe third issue: Tf so (that is — if plaintiff’s intestate was guilty of contributory negligence), could tbe defendant, notwithstanding tbe contributory negligence of tbe deceased, by tbe exercise of reasonable prudence and proper care, have *118avoided killing the deceased.’ The burden of the issue, gentlemen of the jury, is upon the defendant to satisfy you by the greater weight of the evidence. This involves the doctrine of what the law calls the last clear chance, — that the defendant, as plaintiff contends in this action, had the last clear chance to avoid the injury resulting in the death of plaintiff’s intestate, Mr. 'William Hudson. Now, as I have stated to you, the burden of the issue is upon the defendant to satisfy you by the greater weight of the evidence.”

Defendant excepted to this instruction and assigns same as error.

The late Chief Justice Clark, in his concurring opinion in Horne v. R. R., 170 N. C., at page 653, says: “The decisions are uniform that in cases of injury to a trespasser on the track, there should be a third issue submitted: ‘whether, notwithstanding the contributory negligence of the plaintiff, the defendant could with reasonable care have avoided the injury’; and that the burden of this issue is upon the defendant.”

It was stated upon the argument of the appeal in this Court that the judge presiding at the trial cited and relied upon this statement as authority for his instruction. We are unable to reconcile this statement, as to the burden of proof upon the issue as to the “last clear chance,” with the law as declared by this Court in its opinion, written by Douglas, J., in Cox v. R. R., 123 N. C., 604. It is there said:

> “It would almost seem needless to repeat what we have so often said, that the burden of proving negligence rests upon the plaintiff, while the onus of showing contributory negligence rests upon the defendant. In both cases, this must be shown by a greater weight of the evidence and of this relative weight the jury alone can determine. A negative presumption necessarily accompanies the burden and remains until the burden is lifted or shifted by direct admissions or a preponderance of proof. Each issue bears its own burden, and it rarely happens that the burden of all the issues rests upon the same party. In cases of negligence, like the present, it changes with each successive step, it being necessary for the plaintiff to prove the negligence of the defendant, the defendant the contributory negligence of the plaintiff, and again for the plaintiff to show the last clear chance of the defendant, if that issue becomes material.”

Cox v. R. R., supra, has been frequently cited in opinions of this Court as authority for propositions of law declared therein. See Clark’s Anno. Ed. It is cited with approval in the opinion of the Court written by Walker, J., in Lea v. Utilities Co., 178 N. C., 509, who says:

> “The burden was upon the plaintiff to satisfy the jury upon the first issue that the defendant was negligent and that its negligence was the proximate cause of the injury to him. This was his only burden. When *119be bad established tbe defendant’s negligence as tbe proximate cause of bis injuries, tbe burden tben shifted to tbe defendant and it was required to prove, under tbe second issue, tbe plaintiff’s contributory negligence. When it has done that, tbe burden again shifts, but this time to tbe plaintiff, and be must show, under tbe third issue, that notwithstanding tbe plaintiff’s negligence, tbe defendant could, by tbe exercise of ordinary care, have prevented tbe injury to him.” This, and not tbe statement found in tbe concurring opinion cited, is tbe “last clear statement” by this Court of tbe law as to tbe burden of proof upon tbe issue as to tbe “last clear chance.” There was no dissent to tbe opinion of tbe Court in Lea v. Utilities Company, supra. We find no opinions of this Court, in which tbe statement of tbe Chief Justice that tbe decisions of this Court are uniform that tbe burden of proof is on tbe defendant upon tbe third issue, is sustained. All tbe decisions are to tbe contrary. Hill v. R. R., 169 N. C., 740; Brown v. R. R., 172 N. C., 604; Smith v. Electric R. R., 173 N. C., 489; Lea v. Utilities Co., 178 N. C., 509. Tbe statement of tbe Chief Justice was manifestly an inadvertence. It is not an authority sustaining tbe instruction which defendant assigns as error.

Nor can tbe instruction be sustained on general principles. Tbe plaintiff asserted tbe affirmative of tbe issue, and therefore assumed tbe burden; Speas v. Bank, 188 N. C., 524; Hunt v. Eure, 189 N. C., 483, 20 R. C. L., 138. “In order to invoke tbe 'last clear chance’ doctrine, plaintiff must plead and prove that tbe defendant, after perceiving tbe danger, and in time to avoid it, negligently refused to do so.” 11 C. J., 282.

It is needless to pass upon or discuss tbe other assignments of error. For tbe error in tbe instruction that tbe burden of proof was upon tbe defendant there must be a

New trial.