CLARK and DAVIS, JJ., dissenting.
The following issues were submitted to the jury:
1. Was J. M. Clark killed by the negligent running of defendant's engine?
2. Was there contributory negligence on his part?
3. After said J. M. Clark put himself in peril, might the killing have been avoided by the exercise of proper care and prudence on the part of defendant company's engineer?
4. What damage, if any, is plaintiff entitled to recover?
The jury answered each of the first three issues (1, 2 and 3), "Yes," and fourth issue, "$1,250."
The following is the material evidence in the case:
Jackson Lassiter, for plaintiff: "I am acquainted with the place where the plaintiff's intestate was killed. The trestle is about 125 feet long. Judging from my knowledge of the situation, acquired by the examination of the locality after the accident, plaintiff's (432) intestate was knocked by engine 25 or 30 yards. I heard the train blow — give the danger signal; might have blown several times more; when I looked the train was 450 yards from the trestle. This was a passenger train, a little behind time. A train with air brakes can be stopped in 150 yards. When the train reached the trestle I could see no diminution of speed. Train stopped pretty soon after it got over the trestle, and was, at time of blowing, traveling at rate of 30 or 35 miles an hour. This trestle had been used by the public as a foot-way for 17 or 18 years. When I got to the trestle plaintiff's intestate was dead. The accident was a little past 2 o'clock p.m. A person might have gotten on a cap of the trestle and have avoided being run over, if he was pretty active." The witness then introduced diagram of the trestle and locality of the killing which he swore was correct, showing that Clark was struck near the south end of the trestle, and that his body was knocked by the engine about 25 yards beyond the south end of the trestle and down the embankment, and showing that when the engine blew the alarm it was 450 yards from the north end of the trestle.
Cross-examined. — "A long grade there. A man on trestle could have been seen by engineer a mile, and a person on the trestle might have seen the train the same distance."
J. D. Moore, for plaintiff: "I heard the train blow; looked and saw a man on the trestle — five or six yards on it. The train blew as it does when stock is on the track. When the train blew it was 450 yards from the trestle. I could see no slack-up of the train. It was running at least thirty-five miles an hour. Train ran one hundred yards over and beyond the trestle before it stopped. The stream runs under the trestle, and is six or eight feet wide; trestle 125 feet long; rock on each (433) side trestle on the ground south of stream. Engineer could see man on trestle mile off; cannot tell how near he would have to get to trestle before he would know the man was on the trestle."
Jackson Lassiter, recalled: "The engineer could tell man was on the trestle four or five hundred yards off. There was a mile-post at north end of trestle."
Mrs. O. E. Clark: "The intestate was forty-nine or fifty years old. He was partly deaf in one ear; he was lame in one ankle and limped."
John W. Snipes: "I am acquainted with intestate of plaintiff; he made about one hundred dollars per year, free from board."
James W. Morris, for defendant: "Am agent of the Atlantic Coast Line. The general character of Thomas McMillan, as an engineer and as a man, is good. Engineer could not tell, with train running forty-five miles an hour, whether man was on trestle or other part of track more than about 125 yards, if the man was just entering the trestle. Train running forty-five miles an hour could be stopped in 450 or 500 yards."
Thomas McMillan: "I have been an engineer sixteen or seventeen, years on the Wilmington and Weldon Railroad. I was engineer on this train (No. 23), bound south, behind time thirty minutes, running forty-five to fifty miles an hour; seven coaches, two of which were sleepers. I was in my proper position, sitting on the right-hand side of the engine. Clark was killed on the trestle of the Old Town Creek at foot of hill, going down grade for a fraction over a mile; grade twenty-five feet to the mile. I was keeping a lookout ahead; saw Clark first, about three-quarters of a mile off, walking on outside right-hand side of track. When I got within about one hundred yards of him I saw that he had not noticed the approaching train. I blew a distinct road-crossing signal (two long and two short blasts of the whistle); the fireman, (434) at the same time, rang the bell. I did this as a warning to him that a train was approaching from the rear. He acknowledged that by stopping and looking back at the train. He then turned and went towards the trestle, still on the outside of the track. If he had stayed where he was I could have passed him with safety to himself. When I got within forty or fifty yards of him he had arrived at a point at or near the north end of the trestle; he stepped upon the track
directly in front of the engine; attempted to trot or run across the trestle. When he stepped upon the track I shut off steam and applied the brakes; then I blew the danger whistle. When he had run twelve or fifteen feet on the trestle, the engine struck him. Train had the latest improved and best automatic brakes. As soon as possible, after applying brakes, I reversed the engine. After I applied brakes train ran about 400 yards. He might have walked down off the embankment where he was when he looked back at the engine, and also at the end of the culvert. I had no reason to believe from any action of Clark's that he was going to attempt to cross the trestle; I thought he would keep out of the way of the train. The highest point of the trestle is eleven feet; on the north side of stream trestle is only seven or eight feet high."
Cross-Examined: — "When Clark stepped on track engine was in forty or fifty yards of him. A verdict against the railroad in this case would not cause me to lose my place; the railroad does not discharge its employees because of verdicts of juries. It would not, however, retain in its employ a negligent or careless engineer."
L. B. Tillery: "Train running at thirty-five miles could be stopped in about 300 yards running; as that train was running, could be stopped in between 400 or 500 yards; I cannot be strictly accurate as to the distance."
Mack Jones: "I was fireman on this train; when I first saw Clark he was on right-hand side of track; if he had stayed there he would not have been hurt; I first saw him about half a mile off; when in a hundred yards engineer gave the alarm; when we went on trestle (435) we were in thirty or forty yards of him. Train stopped in 200 or 250 yards from where Clark was struck. He had two ticklers; been in service of defendant six or seven years. Train running between forty-five and fifty miles an hour."
John Cotton: "I was passenger on train, standing on front of second-class car looking ahead. I saw the man walking alongside of the track; heard the whistle blow, and saw the man when he turned around and then proceeded walking. Felt the brake applied; heard the short blasts of the whistle."
George Ricks: "I was a track hand, and was then at work about two hundred yards from the south end of the trestle; I heard the whistle blow — train was then coming on the north side of the trestle; I cannot give any idea of the distance the train was from the north end of the trestle when the whistle blew; when the whistle blew I looked up, and James M. Clark was on the trestle and was running in the direction of me, which was south. It was the evening mail, southward bound. He was in the middle of the track of the trestle, running, when I saw him; he had a small valise on his back; he kept running till the train struck
him. I had seen him, before the whistle blew, coming towards the trestle, and he was walking on gravel-walk by the side of the track at the end of the cross-ties; my attention was not again directed towards him until I heard the whistle. On the north side of the trestle, the road is straight for two and a half miles. The engineer could see a man on the trestle for one mile. I cannot say that the train slowed up any before it struck him; a man standing in front of train cannot tell whether it is slowing up or not. It didn't run but mighty little ways after it struck him before it stopped. He fell on the east side of the track, where I saw him. It knocked him up, and he fell over on the east side; I do not know how far he fell from the place he was (436) struck. The train stopped in about fifty yards from the south end of the trestle after striking Mr. Clark. The trestle is a regular pass-way for people, anybody crosses that wants to."
Cross-examined: — "There is a private crossing about one-fourth of a mile north of the trestle on which Clark was killed. The engineer blew at the land-bridge crossing, one mile north of trestle. Mr. Clark was then on the gravel-walk at the end of the cross-ties. If Mr. Clark had kept on the gravel-walk he would have been safe. He kept on the gravel-walk till he got to the trestle. At that time a man could have gone down and crossed the creek dry-footed. A man could, with safety, have jumped to the ground — it was sand bottom; at the north end of trestle, could have gone down embankment with all ease. When I first saw him, he was walking alongside the road, like any other man. He appeared to be sober and in his right mind; when I first saw him on the trestle he was running, and the whistle was blowing and the bell ringing, and continued to blow and ring until the train struck him; engine ran about fifty yards after train struck the deceased. Coming towards Town Creek from the north is down-grade for a mile. There was nothing to hinder Mr. Clark from seeing the coming train; it was a still day; could hear the train roaring a mile that day."
By consent of the plaintiff, the second issue was answered "Yes."
The defendant excepted to the admission of none of the foregoing evidence, nor to the exclusion of any evidence.
The defendant offered no prayer for instructions.
After the verdict of the jury assessing the damage at $1,250, the defendant moved for a new trial, on the ground that the verdict was not sustained by the foregoing evidence. The defendant also moved for a new trial upon the ground that his Honor, in recapitulating the evidence, stated that it was contended by counsel for the plaintiff that (437) McMillan, the engineer, ought not to be believed, because if he came on the stand and should admit such statement of facts as would warrant a verdict for plaintiff, he, McMillan, would lose his place, and
that his Honor did not recite the opposite contention of counsel for defendant.
His Honor recapitulated the various contentions of the counsel on both sides fully to the jury, and, in calling attention of the jury to the various contentions of the counsel, stated: "It was contended by counsel for plaintiff that the engineer ought not to be believed, because if he were to admit such statement of facts as would warrant a verdict for plaintiff it would be a moral confession of manslaughter, and that he would probably lose his place; that it was contended by counsel for the defendant that McMillan, the engineer, was a man of good character, both as a man and as an engineer, as testified to by various witnesses; that an engineer of his character and reputation would not run his engine recklessly so as to kill a human being, and that he would not lose his position with the defendant company, no matter what the verdict of the jury was; and that railroad companies did not discharge employees on account of the verdict of juries, for they would lose their best officers if they did so." His Honor charged, among other things, that these were contentions of counsel; that it was his duty to call attention of the jury to the contentions; that it was their duty to consider the same, and in weighing the testimony of the various witnesses examined, to consider what interest, if any, the witness had in the matter.
Motion for new trial overruled; judgment; appeal.
The main question presented by the statement of (438) the case on appeal, and ably and elaborately argued by the counsel on both sides, was whether, in any phase of the testimony, the court should have permitted the jury to pass upon the issues involving the question of defendant's negligence. The plaintiff contends that there was ample evidence to warrant the findings of the jury, in response to the first issue, that his intestate was killed by the negligent running of the defendant's train, and, in response to the third issue, that notwithstanding the negligence of his intestate, the injury might have been avoided by the exercise of proper care and prudence on the part of the defendant company's engineer. The defendant assigned as error the failure of the court to instruct the jury that there was not sufficient evidence to justify an affirmative response to said issues. So that if a collocation of detached portions of the testimony would prima facie
tend to show that the engineer was negligent, and that, by such precaution as a man of ordinary prudence would have taken, he could have prevented the collision, it was the duty of the court to submit the issues
to the jury, and they were justified, in the exercise of their exclusive right, in responding to them as they did. Sherndon v. R. R.,36 N.Y., 39; Kenyon v. R. R., 3 Hun, 481. The engineer, according to the testimony of all the witnesses, could see the trestle on which the intestate was killed for a mile before he reached it. George Ricks, a witness for the defendant, deposed that the train approached from the north; Jackson Lassiter, a witness for the plaintiff, testified that there was a mile-post at the north end of the trestle, and that the engineer going south could tell that a man was on the trestle when his engine was four or five hundred yards distant from it; that the plaintiff's intestate was stricken by the engine near the south end of the trestle, which was 125 feet long, and thrown about twenty-five yards south of it and down an embankment; that the train could have been stopped within 150 yards, (439) and that the witness looked when the danger signal was given and the train was then 450 yards from the trestle, but the witness looking at it could see no diminution of its speed when it reached the trestle; just as the witness Moore stated that he could see no "slackup" of the train till it reached the trestle. George Ricks, deposing in behalf of the defendant, could not say that the train "slowed up" any before it struck decedent, though he could see its approach distinctly and that said decedent was running in the middle of the track, when he first saw him, just after the whistle blew.
The defendant's engineer testified that when the signal was given, at a distance of one hundred yards, the plaintiff's intestate acknowledged it by stopping and looking back at the engine; that he was still north of the trestle, had not reached it but turned and went towards the trestle, still on the outside of the track, and when the engineer was fifty yards north of the trestle he stepped upon the track at or near the north end of it for the first time, that he then applied the brakes but struck deceased ten or twelve feet from the north end. The defendant's fireman thought the train was not stopped for 200 to 250 yards beyond where Clark was stricken, while he thought the alarm was given 100 yards north of the trestle. The intestate began to run, according to Ricks's statement, along the middle of the track on the trestle when the signal was blown. There was testimony to the effect that the frame of the trestle was from eight to eleven feet above the ground, and that a very active man might have escaped injury by jumping upon a cap.
The jury were not bound to find that the whole of the testimony of any witness was true, and it is immaterial whether they thought any given one was mistaken as to his recollection or observation of some matters, and accurate as to other facts, or was false in part and credible as to other statements. Any one of several theories arising out of the evidence may have been adopted by the jury. They may have
concluded that Lassiter was to be believed when he stated that (440) Clark was killed at the south end of the trestle, after the engine had traversed its whole length, and not near the north end, as the engineer stated; and that theory may have been strengthened by finding it to be true that the intestate was thrown up into the air, and at the same time received such an impetus forward as to land his body twenty-five yards further at the side of the embankment. They had a right to conclude from the evidence, which we have stated, that deceased was on the trestle in the middle of the track when the whistle blew and the bell rang, and they had testimony sufficient to warrant the belief that at that very moment the engine was 450 yards from the trestle, and could have been stopped in 150 yards. The jury were justified in concluding, as a fact, that the engineer did not, as a witness testified, perceptibly slacken his speed in the least till he struck Clark, and this theory would be sustained by defendant's own testimony (that of the fireman, Jones), that the train ran on 200 to 250 yards after striking him before it was fully stopped, while it could have been brought to a standstill within 150 yards (according to the evidence of Lassiter, which the jury had a right certainly to believe), as they had a right to fix a lower estimate as the true one.
If the foregoing is a fair summary of the facts, that the jury might have found as a part of a special verdict, then we may assume, for our present purpose, that any theory arising out of it is a true embodiment of their finding. Suppose the engineer saw the plaintiff's intestate, after looking back in acknowledgment of the danger signal, rushing along the middle of a trestle 125 feet long, with no means of escape till he should reach the south end of it, except by jumping eleven feet (the height on the south side) to the ground, or the display of unusual activity by jumping upon a cap, and that he ran his engine 300 yards while Clark was still running along the center of the track on the trestle, he could have stopped it within the remaining 150 (441) yards, if not sooner, before even reaching the north end of the trestle. But, when there was no longer any doubt that intestate was fully committed to risking his life in the effort to cross, because of his persistent movement south on the track, while the engine advanced 300 yards after the signal was given, the engineer rushed recklessly onward without the slightest diminution of speed. But if, by any calculation as to the relative progress of two bodies in motion on the same road, the jury concluded that the train was nearer to the trestle when the alarm was given, there is no possible method by which we can legitimately tell whether they fixed that distance at 450, 150, 100 or 50 yards. If it was 150 yards, and Lassiter was to be believed, then the engineer could (after the deceased made his purpose apparent by looking at the
engine and then moving forward) have stopped at the very northern extremity, or if they thought 100 yards was the distance, as the engineer testified, the engine would have been brought down to a slow pace within nine yards of a full stop when it came in contact with intestate, so that the force of the collision might not have been sufficient to do him serious injury if he was stricken at the south end of the trestle. Suppose the jury believed that the estimate of the distance by the engineer, who thought he blew 100 yards and put on brakes fifty yards from the north end, was correct, then he could have stopped in 150 yards. The force of the engine would have been greatly reduced after the use of all appliances for 100 yards, and it might have been considered by them but a fair inference that the blow would not have been fatal, if harmless at all, when the collision should come, had the engineer used every effort to stop, consistent with safety, immediately on giving the alarm. If he could have stopped the engine in less than 100 yards he might have saved intestate's life, whether he put on brakes at 50 or 100 yards. For we must bear in mind, also, that it was decided in Deans v. (442) R. R., supra, that the jury were not bound to adopt the estimate of the witnesses or to hear expert testimony as to the distance within which an engine might be stopped, but could determine that question as one addressed to their common sense for themselves. By fixing that distance at more or less than 150 yards, the estimate of the conductor being that it would require 400 to 500 yards, and varying the finding as to speed from thirty to fifty miles per hour, according to the conflicting testimony an infinite number of combinations might have been made by the jury as to the different questions of distance and speed and force, giving rise to endless inferences from them.
It was in evidence that the deceased was lame, but was running in the middle of the track on the trestle. It was the province of the jury to say where he was, whether entirely north of the trestle, on the trestle, or at what point on it, when the whistle blew. We are not justified in conjecturing as to their findings of evidential facts, when the witness left a margin in distances between 150 and 450 yards, and the jury were at liberty to go even below the minimum mentioned by Lassiter. The jury were justified in concluding that the speed of the engine had not been abated in the least though a frightened human being had been chased by an engine along a trestle from which the engineer ought to have known he could not escape without peril to life or limb, until he was tossed like a ball into the air and thrown forward for twenty-five yards, where his mangled corpse tumbled off the embankment. The evidence of the fireman that the train was not stopped till it had gone 200 to 250 yards south of the trestle, may have been considered by the jury as corroborative of the other witness who said that the speed was
not perceptibly diminished. That would depend upon their estimate of the time and distance requisite for stopping the train, and in settling that question, the jury very probably first determined what the speed was, whether thirty, thirty-five, forty or fifty miles an hour, according to the varying opinions of witnesses and, possibly, (443) whether it was true that the train was running down grade, as stated by a witness. They could believe, or discredit, the whole or a part of the testimony of any witness, and we have no right to assume what their finding was. If there was no conceivable view of the testimony in which the defendant's servants might have saved the life that was lost (despite the admitted negligence of the plaintiff, and after it was apparent to the servant sitting upon his engine that the plaintiff had carelessly put his person in jeopardy), by simply using the appliances at his command and without peril to the persons and property in his charge, the court would have been justified in withdrawing the case from the jury, but not otherwise. The engineer knew, or ought to have known, that the mile-post marked the end of the trestle, and when he saw that the plaintiff's intestate, after turning and looking at the approaching train, was still persisting his perilous purpose of crossing the trestle in its front, he should have resolved all doubt in favor of human life and forthwith have reversed his engine and put on the brakes. We may assume that he did neither, as there is abundant testimony to have warranted the jury in so believing. At this supreme moment the law and the common instincts of humanity would condemn his rushing recklessly onward for no better reason than that the deceased might jump eleven feet to the ground without injury, or, by a display of unusual agility, might place himself upon a cap.
It is settled law in this State that where an engineer sees that a human being is on the track at a point where he can step off at his pleasure and without delay, he can assume that he is in full possession of his senses and faculties, without information to the contrary, and will step aside before the engine can overtake him. But where it is apparent to an engineer, who is keeping a proper outlook, that a man is lying prone upon the track, or his team is delayed in moving a wagon (444) over a crossing, it has been declared that the engineer, having reason to believe that life or property will be imperiled by going on without diminishing his speed, is negligent if he fails to use all the means at his command, consistent with the safety of the passengers and property in his charge, to stop his train and avoid coming in contact with the person so exposed. Deans v. R. R., 107 N.C. 686; Bullock v. R. R.,105 N.C. 180. The same rule prevails where the engineer knows, or ought to know, that a human being has passed a mile-post which marks the end of a trestle nearest to him, and can see that the person, despite
his signal, persists in running along the track from which he cannot step aside, and from which he can escape instantly only by a perilous jump or unusual activity. The law expects him, when he sees a man still lying motionless, after he has given the alarm signal, to take precaution against the possibility of his being drunk, or where one does not move his team at a crossing under similar circumstances, to act upon the idea that the wagon is fastened in some way. While, as a general rule, the engineer "would have a right to assume that a person walking upon the track was in possession of ordinary sight and hearing, yet where the conduct of the traveler is such as to excite a doubt of this, the engineer is bound to use greater caution," and to stop the train if necessary to secure his safety. 2 Shearman Redfield on Neg., secs. 483 and 484; Wharton on Neg., sec. 301;R. R. v. Webber, 18 Am. Reports, 402.
In Cook v. R. R., 87 Ala. 533, it was held error to refuse to charge that if defendant's agents did see, or by the exercise of proper care could have seen, plaintiff's intestate upon said bridge or trestle in time to have stopped said train before it reached him, and that they failed to stop, the defendant was liable. We may add to this rule as applicable (445) to our case that the defendant was also liable if its servant under such circumstances could have so diminished the speed of the engine before the collision occurred as possibly to have saved the life of intestate. The plaintiff was unquestionably negligent, but his negligence was not the proximate cause of his death, if the defendant's servant could have prevented it, after the latter had reason to know of the peril, without danger to persons or property in his charge. 2 Shear.
Red. on Neg., sec. 484 (p. 298), note 1. The principle laid down in the Alabama case which we have cited, must necessarily prevail in every State where the doctrine of Gunter v. Wicker, 85 N.C. 312, is established. Where the courts hold, as in Kansas, that one who walks upon a bridge constituting a part of the track of a railway is a trespasser, and the engineer is not bound to keep a lookout for such an intruder, and if he is killed while on a bridge or trestle the company is only liable for wilful negligence, it follows that they always refuse to sanction the doctrine so fully settled by this Court. Hence, it was found necessary to overrule Herring v. R. R., 32 N.C. 402, in Deans v. R. R.,107 N.C. 686.
The true test of the engineer's duty is involved in the question whether he has reasonable ground to believe, with all the knowledge of the surroundings which due diligence requires of him, that the life of a fellow-man is in peril, and that the danger to his person can only be averted by stopping or reducing the speed of the train. When an engineer sees a man persistently putting himself in peril on a trestle or bridge, so that
he can no more get off the track than one who is lying on it in an apparent stupor, except by exposing himself to danger, why is it not reasonable in him to act instantly on the natural inference that one whose conduct is so extraordinary, is either drunk or bereft of reason from sudden terror? Cookv. R. R., supra; Wharton on Negligence, sec. 301.
Greater caution is expected of a company in all cases, where, for any cause, it is apparent that one is not apprised of his (446) danger. 60 Alabama, 621, 640.
Though plaintiff's intestate was negligent in going upon the trestle when he knew, or might have known, before the alarm was given, that a train was approaching, his admitted fault would not excuse the subsequent carelessness of the engineer in inflicting an injury upon him that could have been avoided. One wrong no more justifies another in law than in morals. Needham v. R. R., 37 Cal. 407. Because one carelessly exposes his life on account either of drunkenness or deliberate folly, he does not thereby become an outlaw so as to give railroad companies the right to run their through trains in reckless disregard of his safety. There is no presumption that a child or a man apparently drunk will get out of the way. When intestate acted like a drunken man and made no effect to leave the trestle, the engineer should have stopped the train. 2 Woods R. R., 1268 and note 1. Kenyon v. R. R., 5 Hun, supra; Sheridan v. R. R., 36 N.Y. 39. Persons in great peril are not expected to exercise the presence of mind and care that would ordinarily be characteristic of a prudent man. The law makes allowance for their excitement, and leaves the circumstances of their conduct to the jury. Buell v. R. R., 31 N.Y. 314; R. R. v. Yarnard,17 Ill. 509; Wharton on Negligence, sec. 304.
The jury doubtless thought that the conduct of the deceased, after the engineer saw him on the track, was such that the latter had reason to believe that he was drunk. In corroboration of this theory he had, according to the testimony, two bottles of spirituous liquor upon his person, just as Deans was found with a bottle and broken glass at his side. According to the views of the testimony which we have presented as the possible and legitimate theories adopted by the jury, there was almost, if not quite, as cogent reason for the conclusion on the part of the jury in our case as in Deans' case, that a person who acted (447) so unnaturally and carelessly must have been drunk. It was unquestionably negligence to get drunk and lie down upon the track, as it was to go upon it in full view of an approaching train. But in the one case as in the other it was the province of the jury, not of the court, to determine whether the engineer had reason to believe that a man was so situated that he could not, without peril, get off the track in time to escape the train moving as it was, or was so much intoxicated
that he could not, or would not, attempt to escape, and whether, after he could have discovered the situation, the engineer might, by exercising ordinary care, have avoided the fatal injury. Cook v. R. R., supra. Instinct would prompt a man, under such circumstances, to try to save his life, and, in the absence of all evidence, the presumption is that he had exercised due care. R. R. v. Weber, 76 Penn. St., 157.
In the case of Deans v. R. R., it was declared to be the province of the jury to determine which of two natural inferences should be drawn from an admitted state of facts. In our case there are not only different inferences directly deducible from the evidence, but there is contradictory testimony, giving rise necessarily to different conclusions of law according to the possible findings of the jury. R. R. v. Van Steinburg,17 Mich. 99.
We cannot follow counsel in the line of argument adopted, and say, that because the court held in the case referred to, that without expert testimony the jury could exercise their own common sense and determine within what space an engineer might stop his train, we can go a bow-shot further here and declare that the court may judicially determine what would be the relative progress of the two bodies moving upon the same track, the train, whose speed was estimated by various witnesses at thirty to fifty miles per hour, and a man, who was said to be lamed, but whose velocity was not even guessed at by any (448) witness. The difficulty would be enhanced by the fact to which we have adverted, that the jury had the exclusive right to say within what distance the train could be stopped, and an essential factor would be wanting if any one outside of the jury should undertake the problem. If, moreover, the case at bar does not present a number both of conflicts in evidence of the various witnesses and of diverse inferences deducible from different views of the evidence leading to conclusions of law, modified according to the inference drawn, it would seem difficult to conceive of one that does.
The Court cannot, for the want of ascertained data, work out the problem so as to reach a special verdict. The engineer, when his train was rushing on at such a speed, and a human being was placing himself in imminent peril of life, was not warranted in making a calculation in his head of this intricate problem. It is now manifest that if he refused to slacken his speed in the least (as we must assume on the demurrer to the evidence he did), and acted upon a hurried calculation as to the rapidity with which the intestate was moving, he made a fatal mistake. The man is dead and the engine killed him. So that the figures, contrary to maxim, were false. If the jury believed that the engineer could, by ordinary care, after seeing the situation of deceased,
have diminished the force of the collision so as to bruise, instead of killing him, their verdict ought not to be disturbed.
It is due to the counsel who discussed the doctrine of proximate and remote cause with so much subtility, to state briefly the reason why a court, where the principle announced in Davies v. Mann, 12 M. W., and first adopted by this Court in Gunter v. Wicker, prevails, cannot concur in his line of reasoning. It has been generally conceded, that from the standpoint which is occupied by this Court, the rule of causacausans has been more happily and succinctly stated by Judge Cooley
in his work on Torts, than by any other writer. He says (pp. 70, 71): "If the original wrong only becomes injurious in (449) consequence of the intervention of some distinct wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause, and not to that which was more remote." 4 A. E., 25 and note 3, with authorities cited: Isbel v. R. R.,27 Conn. 404. Applying the principle to the facts of our case, it is manifest that, though plaintiff's intestate was negligent in going upon a trestle when he ought to have known that a train was approaching, he would not have been killed if the engineer had stopped the train before it came in contact with him. If, then, there was any evidence that warranted the finding of the jury in response to the third issue, which meant that the death was due to the negligence of the engineer in failing to stop or diminish the speed of the train, it would follow that the court must hold, as law, that the negligence of the defendant was the proximate cause of the injury. The authorities do not sustain the position assumed by counsel. It makes no difference how short an interval occurs between the negligent act of the plaintiff and that of the defendant, if the latter had time to discover the danger and avert it by the exercise of ordinary care. 4 A. E., 27; Needham v. R. R.,supra; Trow v. R. R., 24 Vt. 494. The illustration of concurrent negligence given by Judge Cooley outlines still more clearly the distinction which we have attempted to draw. It is the case of two persons who, in concert, block up a street. "Neither of the culpable parties can excuse himself by showing the wrong of the other, for the injury is a natural and proximate result of his own act." There are two divergent lines of authority upon this subject, but the position assumed by counsel for the defendant finds no support in the decisions of those courts that have, like this, adhered closely to the doctrine ofDavies v. Mann, 10 M. W., 545. The negligence of the plaintiff in our case consisted in going upon the trestle when an (450) approaching train was in sight, as it could have been seen a mile. But if, after he went upon the trestle, the defendant company's servant could, by proper watchfulness, have discovered his danger in time to
avert it without jeopardy to the persons or property on defendant's train, and neglected to do so, the negligence of the two was not concurrent nor contemporaneous. That of the defendant was so far subsequent to the plaintiff's wrongful act as to give time to the servant of the former to have discovered the danger, and averted the injury by the proper use of the means at his command. 2 Thomp. Neg., 1157; Whart. Neg., secs. 343, 346, 348.
It was not error in the court to recapitulate fairly such contentions of counsel as illustrated the bearing of the evidence upon the issues. It is often helpful, if not necessary, for the court to do so, in order that they may understand how to apply the law to the testimony.