[404]*404BeowN, J.
Tbe plaintiff brings this action against the defendant Lon Roberts to recover damages for the death of his intestate, "W". H. Sigmon, attributing his death to the negligent conduct of Roberts, an engineer of defendant railway company’s freight train.
Sigmon was a brakeman on the train, and on 6 May, 1908, was killed by falling between two cars. The facts are that the engineer was backing his train of three cars from the main track onto a siding at Balsam, the engine and tender pushing the cars. The three cars were coal cars loaded with wood. AS' the train was partly on main track and turning onto the siding, Sigmon undertook to step from the second car to the one next to the tender, and fell between them. As he fell one foot was caught in the air-hose coupler between the two cars and Sigmon was thrown on his stomach across the rail. He grasped the ends of the cross-ties, with his hands and endeavored to move this body along so as to keep out of the way of the wheel, but one wheel caught his leg and severed it, from which he died.
It is admitted that if Roberts was guilty of such negligence as caused Sigmon’s death the railway company is liable along with Roberts for the resultant damage.
The learned judge of the court below ruled that there was not sufficient evidence that Sigmon’s death was occasioned by Roberts’ negligence to require the matter to be submitted to the jury, and in that we agree with him.
We infer from the eloquent remarks of the learned counsel for plaintiff in defense of the right of trial by jury, that he feels that his client was deprived of a fundamental right by the action of the judge.
The record shows that the jury were duly impaneled and heard the case. At its conclusion his Honor ruled that the plaintiff had failed to make out a case by proof, as he was required to do. If his Honor was correct, then there was nothing for the jury to try.
Speaking for the Court, in S. v. Walker, 149 N. C., 530, Mr. Justice Hoke well says: “The controlling principle on a question of this character is very well stated by Merri-[405]*405mon, J., in S. v. White, 89 N. C., 464-465, as follows: ‘It is well-settled, law tbat tbe court must decide wbat is evidence and wbetber there is any evidence to be submitted to tbe jury pertinent to an issue submitted to them. It is as well settled tbat if there is evidence to be submitted, the jury must decide its weight and effect. This, however, does not imply tbat tbe court must submit a scintilla — very slight evidence; on tbe contrary, it must be such as, in tbe judgment of tbe court, would reasonably warrant tbe jury finding a verdict upon tbe issue submitted, affirmatively or negatively, accordingly as they might view it in one light or another and give it more or less weight, or none at all.’ ”
This is a settled rule of law which obtains in all courts where the practice and principles of the common law obtains, and is quoted and affirmed by Mr. Justice Allen in S. n. Hawkins, post, 466. This practice is conducive to the dispatch of business and the orderly determination of litigated rights, and has been crystallized into a statute, Revisal, sec. 539, which bears the name of an eminent lawyer of this State.
There are four grounds of negligence set out in the complaint, but plaintiff rests his case upon one only, viz., that the defendant Roberts failed to stop his train, when he knew or should have known of Sigmon’s imminent danger, and that he could have stopped in time to have saved his life.
It was stated upon the argument that there was a man stationed on the end of the train to keep a lookout as the-train was being backed, but it was admitted that he could have rendered no assistance and could not possibly have prevented the injury.
As to whether the engineer under such conditions must also look out of his cab window when he is backing his train, or can well do so and manage his train, it is unnecessary to determine. This engineer admits he was looking out of the cab window and towards the-end of the train and in. the direction in which his train was moving.
The learned counsel for plaintiff admits with characteristic candor and humanity that if the defendant Roberts had [406]*406seen tbe predicament of Sigmon be would bave done all in bis power to avert tbe catastrophe. But it is contended tbat by tbe exercise of due diligence tbe said defendant could bave seen bim, and tbat if be- bad seen bim be could bave stopped tbe train in time to bave saved life.
All tbe evidence shows tbat when Sigmon fell Roberts could not bave possibly seen the fall. He was in bis cab and tbe tender and a car loaded high with wood was between bim and Sigmon.
When Sigmon fell one foot was bung in tbe air-hose coupler and bis stomach was on tbe rail and bis bead and bands about at end of cross-ties. He grasped tbe ends of tbe ties with bis bands and endeavored by moving bis body to keep tbe car wheel from catching bim. He commenced to halloo as soon as be fell, and according to tbe witnesses it was about two seconds from tbe time be fell and commenced to- halloo before one wheel ran over bim and tbe train stopped before next wheel reached bim.
Tbe plaintiff Cabe was examined as a witness in respect to tbe letters of administration, but be was not present on tbe occasion and knew none of tbe circumstances.
Plaintiff introduced three witnesses who were present and saw tbe occurrence. Witness Bryson states tbat be saw Sig-mon twisting tbe brakes when train was backing on side-track; “beard bim commence hollering, and tbe train was then slowing up, stopping.” “Train did not run over 10 feet after I beard ■Sigmon boiler.”
On cross-examination Bryson stated tbat be did not really know bow far train moved after Sigmon commenced to halloo', but repeats bis statement tbat train was then slowing up and very shortly stopped.
Tbe witness was asked these questions:
Q. Tbe train at tbe time of tbe accident was backing in on tbe side-track at Balsam? A. Yes.
Q. And was preparing to stop at tbat time? A. Yes.
Q. I will ask you if it was not only two or three seconds after tbe hollering until the train stopped? A. I don’t know.
Q. Wasn’t it an instant? A. It was all done in a short time.
[407]*407Q. Almost a thought or an instant? A. Yes, something like that.
C. II. Perry saw Sigmon fall. On direct examination he states that after Sigmon fell the “train went a little piece; could not say exactly how far.” Being pressed to estimate the distance, witness said “probably a car length.” Upon cross-examination the witness materially qualified his estimate of the distance the train moved after Sigmon fell, as following shows:
Counsel: Q. There was a car between where Sigmon stood and the engine, loaded with wood? A. Yes.
Q. At that time you say you saw him fall down on the track, did he say anything at first or did it knock the breath out of him? A. He hollered pretty soon after he fell.
Q. Did he holler the same instant he fell or a second or two afterwards ? A. Yes, a second or two afterwards, about the same time.
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[404]*404BeowN, J.
Tbe plaintiff brings this action against the defendant Lon Roberts to recover damages for the death of his intestate, "W". H. Sigmon, attributing his death to the negligent conduct of Roberts, an engineer of defendant railway company’s freight train.
Sigmon was a brakeman on the train, and on 6 May, 1908, was killed by falling between two cars. The facts are that the engineer was backing his train of three cars from the main track onto a siding at Balsam, the engine and tender pushing the cars. The three cars were coal cars loaded with wood. AS' the train was partly on main track and turning onto the siding, Sigmon undertook to step from the second car to the one next to the tender, and fell between them. As he fell one foot was caught in the air-hose coupler between the two cars and Sigmon was thrown on his stomach across the rail. He grasped the ends of the cross-ties, with his hands and endeavored to move this body along so as to keep out of the way of the wheel, but one wheel caught his leg and severed it, from which he died.
It is admitted that if Roberts was guilty of such negligence as caused Sigmon’s death the railway company is liable along with Roberts for the resultant damage.
The learned judge of the court below ruled that there was not sufficient evidence that Sigmon’s death was occasioned by Roberts’ negligence to require the matter to be submitted to the jury, and in that we agree with him.
We infer from the eloquent remarks of the learned counsel for plaintiff in defense of the right of trial by jury, that he feels that his client was deprived of a fundamental right by the action of the judge.
The record shows that the jury were duly impaneled and heard the case. At its conclusion his Honor ruled that the plaintiff had failed to make out a case by proof, as he was required to do. If his Honor was correct, then there was nothing for the jury to try.
Speaking for the Court, in S. v. Walker, 149 N. C., 530, Mr. Justice Hoke well says: “The controlling principle on a question of this character is very well stated by Merri-[405]*405mon, J., in S. v. White, 89 N. C., 464-465, as follows: ‘It is well-settled, law tbat tbe court must decide wbat is evidence and wbetber there is any evidence to be submitted to tbe jury pertinent to an issue submitted to them. It is as well settled tbat if there is evidence to be submitted, the jury must decide its weight and effect. This, however, does not imply tbat tbe court must submit a scintilla — very slight evidence; on tbe contrary, it must be such as, in tbe judgment of tbe court, would reasonably warrant tbe jury finding a verdict upon tbe issue submitted, affirmatively or negatively, accordingly as they might view it in one light or another and give it more or less weight, or none at all.’ ”
This is a settled rule of law which obtains in all courts where the practice and principles of the common law obtains, and is quoted and affirmed by Mr. Justice Allen in S. n. Hawkins, post, 466. This practice is conducive to the dispatch of business and the orderly determination of litigated rights, and has been crystallized into a statute, Revisal, sec. 539, which bears the name of an eminent lawyer of this State.
There are four grounds of negligence set out in the complaint, but plaintiff rests his case upon one only, viz., that the defendant Roberts failed to stop his train, when he knew or should have known of Sigmon’s imminent danger, and that he could have stopped in time to have saved his life.
It was stated upon the argument that there was a man stationed on the end of the train to keep a lookout as the-train was being backed, but it was admitted that he could have rendered no assistance and could not possibly have prevented the injury.
As to whether the engineer under such conditions must also look out of his cab window when he is backing his train, or can well do so and manage his train, it is unnecessary to determine. This engineer admits he was looking out of the cab window and towards the-end of the train and in. the direction in which his train was moving.
The learned counsel for plaintiff admits with characteristic candor and humanity that if the defendant Roberts had [406]*406seen tbe predicament of Sigmon be would bave done all in bis power to avert tbe catastrophe. But it is contended tbat by tbe exercise of due diligence tbe said defendant could bave seen bim, and tbat if be- bad seen bim be could bave stopped tbe train in time to bave saved life.
All tbe evidence shows tbat when Sigmon fell Roberts could not bave possibly seen the fall. He was in bis cab and tbe tender and a car loaded high with wood was between bim and Sigmon.
When Sigmon fell one foot was bung in tbe air-hose coupler and bis stomach was on tbe rail and bis bead and bands about at end of cross-ties. He grasped tbe ends of tbe ties with bis bands and endeavored by moving bis body to keep tbe car wheel from catching bim. He commenced to halloo as soon as be fell, and according to tbe witnesses it was about two seconds from tbe time be fell and commenced to- halloo before one wheel ran over bim and tbe train stopped before next wheel reached bim.
Tbe plaintiff Cabe was examined as a witness in respect to tbe letters of administration, but be was not present on tbe occasion and knew none of tbe circumstances.
Plaintiff introduced three witnesses who were present and saw tbe occurrence. Witness Bryson states tbat be saw Sig-mon twisting tbe brakes when train was backing on side-track; “beard bim commence hollering, and tbe train was then slowing up, stopping.” “Train did not run over 10 feet after I beard ■Sigmon boiler.”
On cross-examination Bryson stated tbat be did not really know bow far train moved after Sigmon commenced to halloo', but repeats bis statement tbat train was then slowing up and very shortly stopped.
Tbe witness was asked these questions:
Q. Tbe train at tbe time of tbe accident was backing in on tbe side-track at Balsam? A. Yes.
Q. And was preparing to stop at tbat time? A. Yes.
Q. I will ask you if it was not only two or three seconds after tbe hollering until the train stopped? A. I don’t know.
Q. Wasn’t it an instant? A. It was all done in a short time.
[407]*407Q. Almost a thought or an instant? A. Yes, something like that.
C. II. Perry saw Sigmon fall. On direct examination he states that after Sigmon fell the “train went a little piece; could not say exactly how far.” Being pressed to estimate the distance, witness said “probably a car length.” Upon cross-examination the witness materially qualified his estimate of the distance the train moved after Sigmon fell, as following shows:
Counsel: Q. There was a car between where Sigmon stood and the engine, loaded with wood? A. Yes.
Q. At that time you say you saw him fall down on the track, did he say anything at first or did it knock the breath out of him? A. He hollered pretty soon after he fell.
Q. Did he holler the same instant he fell or a second or two afterwards ? A. Yes, a second or two afterwards, about the same time.
Q. I ask you if about the time he hollered twice, if the train did not stop — wasn’t it all over in a second or two ? A. It was not but a short time until the train stopped.
Q. It was only a thought or a second or two? A. Yes, he hollered a few times before the train stopped.
Q. Would you swear positively that the train moved over 8 or 10 feet or 15 feet, at the outside? A. No, sir; I did not measure it.
Mrs. O. H. Perry saw Sigmon just as he fell. His foot caught in something between cars. He fell between ears and had his hands hold of ends of cross-ties.
The following excerpt from the evidence gives Mrs. Perry’s estimate of the distance train moved after Sigmon fell:
Q. How far do you think the car ran while he was trying to keep out from under the wheels? A. Not very far.
Q. What is your best judgment, a car length?
Q. You give us yoru* best judgment?
The Court: Q. Can you give any idea about the length from any object? A. It was only a few feet between the wheels.
[408]*408Mr. Craig: Q. What was be doing wben the wheel caught him? A. He was trying to get out from under.
Q. Did he seem to be hanging to anything ? A. He was just lying there trying to get out. I don’t know whether he was hanging to anything or not.
Q. "What was he doing; was he moving along? A. He had his hands outside ahold of the. ends of crossAies.
Q. How far did the train run after he fell before the train ran over him? A. Just a few feet; it just pushed him along a few feet and caught him.
Q. How far? A. About as far as from here to the end of the table. (Court: Witness indicating about 4 or 5 feet.)
Upon cross-examination Mrs. Perry testifies as follows:
Q. I ask you if he did not look like he was stepping from one car to the other and either slipped or fell between them? A. Yes, that was the way it looked to me.
Q. How far were the closest wheels to him when he fell on the track; was it over 2 or 3 feet? A. No, sir; I think not.
Q. And you said that when he was standing he was in the middle of the car? A/ Yes.
Q. And when he fell he fell on the track? A. Yes.
Q. And the car ran immediately on his body as the train moved on? A. Yes, it was just a second or two.
Q. And it pushed his body along, before he fell, not exceeding 10 or 15 feet? A. Yes.
Q. Don’t you Know it was not over 8 feet ? A. I don’t know.
Q. You know it was done in a short distance? A. Yes.
Q. I ask you if his falling and his hollering and the stopping of the train was not all in a few seconds? A. Yes.
Q. Almost in a thought, wasn’t it? A. Yes.
This is all the evidence introduced by the plaintiff of those who witnessed the occurrence.
The plaintiff’s case is not aided by anything cropping out in the evidence introduced by the defendant, as an examination of the evidence plainly discloses.
J. R. Warren, witness for defendant, saw Sigmon as he fell; was 10 feet from- him; he fell on his stomach across rail; his [409]*409bands caught bold ends of cross-ties; sliding along in front of wheels; one foot bung in air bose.
Q. Which rail did be fall across? A. Tbe left-band rail going west.
Q. Tbat is tbe south rail? A. Yes.
Q. When be fell in that position, what did you bear and what did you see and what was done? A. He hollered once or twice; be did not have time to boiler much; it was done in a very short time.
Q. It was all done in bow long? A. In one or two seconds.
Q. One or two seconds from tbe time be fell until tbe train stopped? A. Yes.
Q. How far did tbe train move,' bow many feet, before it stopped? A. It could not have moved but a short distance.
Q. Can you given an idea of how many feet or yards, bow many feet? A. I never measured it.
Q. Give us your best impression. A. It was something between 6 or 10 feet, I guess tbat train moved.
Q. Tbat tbe train moved? A. Yes, before tbe train stopped.
Q. Was there a car between Sigmon at tbe time be fell, and tbe engineer? A. Yes, one car.
Q. What was tbat car loaded with? A. Wood.
Q. How many seconds was it from tbe time be fell until tbe train stopped? A. About two seconds.
Q. How fast was tbat train going ? A. Three or four miles an hour; just was barely moving; it was stopping when be fell.
This witness further testifies tbat when Sigmon fell across tbe rail bis bead was about even with tbe end of tbe cross-ties.
D. 0. Ensley saw Sigmon fall and gives substantially same account as other witnesses. He helped to pull Sigmon out after train stopped, and was asked this question:
Q. Did you make any measurements of bow far it was from where be fell to where you pulled him out? A. No, sir; only we saw tbe print where it looked like be bad been in tbe cinders. It was about four cross-ties.
Q. How far would tbat be? A. Something like 2 feet from tbe center to center.
Q. And you say there were four? A. Yes, we counted four.
[410]*410Q. From where be fell to where you pulled him out? A. Yes.
E. L. Potts saw the occurrence, and stated:
Q. I wish you would state to' his Honor and the jury just what you saw in regard to this matter. A. I heard him holler and I ran out a few steps and looked; I was facing the railroad and could have seen him if I had looked. And the train was just barely stopping when I saw him flounce on his stomach and his heels came over and I started towards him.
Q. From the time you heard him holler until the train stopped, how far did the train run? A. Not over 6 feet,
Q. How many times did you hear him holler? A. Three times — I am not certain.
Q. From the time he first hollered until the time the train stopped, how much time elapsed? A. Not over two or three seconds.
The defendant Roberts testifies that he was backing from main track to' switch at from 4 to 6 miles an hour; that he could not see Sigmon from the engine, as there was a curve from the side-track and he could not see Sigmon for that; that he was looking back from cab window in direction in which he was going ; that he did not know Sigmon had fallen until train stopped; that he examined the distance and it was 6 feet from where Sigmon fell to where train stopped; that he could not have stopped his train of three loaded ears under 8 or 10 feet.
Before the plaintiff can recover or “go to the jury” in this case he must offer evidence of sufficient probative force to justify the establishment.of these propositions:
1. That Roberts saw or had actual knowledge of Sigmon’s peril.
As this is not contended by counsel, it may be dismissed without discussion.
2. That although Roberts had no actual knowledge of Sig-mon’s peril, it was his legal duty to have discovered it, and hence the law fixes him with such knowledge.
3. That after Sigmon fell between the wheels of the cars Roberts could have stopped the train in time to avoid the injury.
Upon the second proposition we have been cited to no au[411]*411thority, and have been able to find none, which fastens upon an engineer the duty to watch his brakemeu. as they move over the train in discharge of their duties, or to discover immediately that one has fallen between the cars.
It is manifestly impossible and inconsistent with the management of an engine. Neither have we any authority for the contention that it is an engineer’s duty, while moving his train backward, to look under it or along the cross-ties and in the vicinity of the rails for persons who may have fallen between the cars.
The engineer is not required to anticipate such accidents, and unless he actually discovers them neither reason, authority, nor ordinary justice requires that he be held culpable if he fails to see them.
In looking back from his cab window at the end of his train in the direction in which it is going, the engineer may well fail to see a person struggling under the wheels of the cars, for he is not required to look there, or anticipate such accidents as befell Sigmon.
And as said by this Court, “Where the law does not impose the duty of watchfulness it follows that the failure to watch is not an omission of duty intervening between the negligence of plaintiff in exposing himself and -the accident, unless he actually be seen in time to avert it.” Pickett v. R. R., 117 N. C., 636.
In this case there was no legal duty on the part of the engineer Roberts to watch under the cars, the place where Sigmon fell, and therefore the failure to discover him cannot be imputed to his negligence.
When moving his train forward it is the engineer’s duty to keep a vigilant lookout in front of him along the tracks. For that reason he is chargeable with knowledge, not only of what he actually sees on the track, but of what by reasonable diligence he might have discovered. This is the principle settled by Bullock, 105 N. C., 180; Deans, 107 N. C., 686; Picketts, supra, and many other cases.
But when a train is backing, the engineer from his cab cannot see the track ahead of his cars. Therefore the company [412]*412must place a watchman, on the end of the last car so be can watch the track and guard against injuring persons in front of him. When the engineer is backing and looking in the direction in which he is moving, his vision is of course directed at the end of his train. He is looking from.an elevated position far above the track rails. His purpose in looking is to note signals and as far as possible guard against any obstruction ahead of his train, and not what may be under its wheels or the end of the cross-ties.
The duties of an engineer are many and weighty and he is held to a degree of vigilance and responsibility that is placed upon no other servant of the public. But if, in addition, he is to be charged with ■ knowledge of everything that happens on his train and under it, he would require the hundred eyes of the fabled Argus. But if perchance Roberts had been looking from his cab directly at the place where Sigmon fell, there is no reasonable j>roof that he could have seen him. The train was being switched from the main track to a siding at time Sigmon fell, and this formed a curve, throwing the car further out of the line of vision. All the evidence shows that Sigmon’s head and hands were at the end of the cross-ties and that the cars themselves extend 14 inches beyond the rail. The plaintiff’s witnesses who were on the ground heard Sigmon halloo, but did not see him until they looked for him. Roberts testifies that not only did he not see or hear Sigmon, but that he could not then have seen.him from his position in the cab window.
Edge’s case, 153 N. C., 212, is no authority for the positions advanced by the plaintiff. In that case the train was at a standstill in the switching yards. A messenger of the company approached it with the evident purpose of going between the cars. The plaintiff testifies that “he (the engineer) was looking straight at me.” When plaintiff was between cars the engineer, who should have known of his perilous position, started his train and injured plaintiff.
The court thought the evidence of negligence sufficiently strong to be submitted to the jury. The great difference between that case and this is too .obvious to justify discussion.
[413]*413As to tbe third proposition, it is not contended that Roberts could have seen Sigmon as be fell between tbe cars, and, if be bad afterwards actually discovered bim struggling on tbe rail and between tbe wheels, tbe plaintiff’s evidence falls short of showing that Roberts could have stopped bis train in time to have avoided tbe injury.
Plaintiff’s witnesses all say tbe train was slowing up when Sigmon fell; that it did not move over 8 or 10 feet after that. One witness said about a car length, but afterwards materially qualified that statement, as tbe evidence we have quoted will show. Upon cross-examination all plaintiff’s witnesses say it was “only a thought,” “two or three seconds,” from time Sigmon commenced to “boiler” until train stopped, and that be commenced to “boiler” as soon as be fell.
All tbe evidence' shows that this train could not have been stopped, at tbe rate of speed it was moving, under 8 or 10 feet.
We understood it to bo contended on tbe argument that Roberts, tbe engineer, testified that be could have stopped bis train in 10 or 12 inches. That is erroneous. He stated be could stop one car in 10 or 12 inches, provided tbe slack was all out. There is some 2 feet slack between tbe cars, and as tbe train was backing tbe “slack was all in.”
This train consisted of three heavy coal cars loaded with wood, and tbe engineer stated, repeatedly it could not have been stopped under 8 or 10 feet.
We have reviewed this case at some length because of its importance, and are unable to find any sufficient evidence to warrant the contention that tbe defendant Roberts was responsible for tbe injury Sigmon received or that it can be fairly attributed to Roberts’ negligence.
From tbe evidence it appears to us to have been an accident pure and simple, and, however lamentable, no omission of duty by tbe defendant Roberts was tbe proximate cause of it.
Tbe judgment is
Affirmed.