CLARK, C. J., and CONNOR, J., dissenting.
The ordinary issues in such actions were submitted. There was evidence of plaintiff tending to show that intestate was killed in attempting to drive his wagon over defendant's road at a public crossing, and by reason of the negligent failure on the part of defendant in giving the ordinary and usual signals at crossings, and that such negligence was the proximate cause of the injury.
There was evidence of defendant tending to show that the ordinary and usual signals were given; and that the intestate was guilty of contributory negligence in driving on the crossing without having looked and listened for an approaching train; and when, if he had looked, the approach of the train might have been seen in time to have avoided the collision (211) and prevented the death of the intestate.
In response to prayer for instructions by plaintiff, the court on the issue as to contributory negligence, charged the jury as follows:
"4. It is the duty of a railroad company to give the public due notice of the approach of its trains to a public crossing so that travelers may stop their teams, if necessary, and stay off the crossing until the train has passed. The train, if it gives the proper warning of its approach, and the railroad company is not otherwise at fault, is entitled to the right of way in preference to a traveler on the highway. The traveler has the right to expect such warning to be given to him and he must look and listen when approaching a crossing, and his failure to look and listen when such warning is given is negligence, and if such failure should cause his death, no recovery could
be had for it. But when the train does not give timely warning and reasonable warning of its coming, it is not contributory negligence in a traveler to go upon the track without looking and listening for the approach of a train, if he exercises that prudence and care which a prudent man would exercise under the circumstances and if the injury resulting is attributable to the negligence of the railroad company in failing to give the signals, for such failure would be deemed the proximate cause of the injury, if the jury should find from the evidence that with proper warning the traveler would not have attempted to cross. Therefore, if from the evidence you find that the railroad company failed to give timely warning of its approach to the crossing, by sounding the whistle or ringing the bell, and also find that the plaintiff's intestate went upon the crossing without looking and listening, his failure to look and listen under such circumstances would not be the proximate cause of his death if, with the proper warning, he would not have gone upon the track, and if from the evidence you find such to be the facts, you will answer the second issue `no,' that is that the plaintiff's intestate was not guilty (212) of contributory negligence."
To this charge the defendant duly noted an exception. The court, in substance, repeated this statement in its direct charge to the jury. Verdict and judgment for the plaintiff; defendant excepted and appealed.
after stating the case: The first portion of the instructions above quoted, which states the obligation on the railroad to give adequate warning when approaching a public crossing and the obligation on the traveler to look and listen in like case, is correct. As stated inImprovement Co. v. Stead, 95 U.S. 161: "Both parties are charged with the mutual duty of keeping a careful lookout for danger, and the degree of diligence to be used on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring to perform his duty."
The remaining portion of the instruction, however, addressed more particularly to the feature of contributory negligence, by fair and reasonable intendment, can only mean that though a traveler in approaching a railroad track is required to look and listen, yet this obligation is not upon him, nor will the consequence be imputed to him, if he failed to look and listen
when such failure was caused by the negligent failure of the railroad train to give the necessary signals; and this, where there was evidence tending to show that if he had looked he could have seen the approaching train in time to have avoided the collision, or at least to have saved himself by the exercise of reasonable effort. In this we think there was error which entitles the defendant to a new trial.
It relieves the traveler of all obligation to look and listen when there is failure on the part of the defendant to give the usual and ordinary signals, and places the entire (213) responsibility for such a collision on the railroad company. It would, in effect, practically eliminate the defense of contributory negligence when there had been a negligent failure to give the warning; for ordinarily it is only by looking and listening that a traveler can inform himself of dangerous conditions. This is not a just principle by which the rights of parties in cases like the present should be determined, nor is it supported by any well considered authority.
The general rule is well stated in Beach on Contributory Negligence, as follows: "In attempting to cross, the traveler must look and listen for signals, notice signs put up as warnings and look attentively up and down the track, and failure to do so is contributory negligence which will bar a recovery. A multitude of decisions of all the courts enforce this reasonable rule. It is also consonant with right, reason and the dictates of ordinary prudence, and so much in line with the ordinary care which the average of mankind display in the daily routine of life, that it would seem to be scarcely dependent upon the authority of decided cases in the law courts. As a general rule the omission of the traveler to look and listen is so clearly a want of ordinary care that it constitutes contributory negligence as a matter of law, but it cannot be said that such failure will always defeat a recovery, for circumstances may and sometimes do exist which excuse the omission." And the rule so stated is in accord with the decisions in this and other jurisdictions. Randall v. R. R., 104 N.C. 410;Mayes v. R. R., 119 N.C. 758; Mesic v. R. R., 120 N.C. 490;Laverentz v. R. R., 56 Iowa 689; Nixon v. R. R., 84 Iowa 331; Davis v. R.R., 47 N.Y. 400; Rodman v. R. R., 125 N.Y. 526; R. R. v. Brownell,39 N.J.L. 189.
The rule is so just in itself and so generally enforced as controlling, that citation of authority is hardly required. (214) But as the matter has been very earnestly debated, it is considered well to quote from some of the decisions illustrative of the obligation on the traveler to look and listen,
and some of the exceptions where its violation was not held contributory negligence as a matter of law.
In Randall v. R. R., supra, it is held to be the duty of a person approaching a railroad track to take every prudent precaution to avoid a collision, and it is the duty of the engineer to sound the whistle or ring the bell at a reasonable distance from the crossing in order to enable travelers to avoid danger.
In Mayes v. R. R. (CLARK, J., delivering the opinion) it is held to be the duty of one approaching a railroad crossing to use ordinary and reasonable care to avoid accident, and to exercise his senses of hearing and sight to keep a lookout for an approaching train; and if he does not do so, but drives inattentively upon the track without keeping a lookout or listening for approaching trains, and injury results, he is ordinarily but not in all cases, guilty of contributory negligence.
In Mesic v. R. R., MR. JUSTICE MONTGOMERY, speaking for the Court, said: "The rule is general and usual that whenever an approach to a public crossing over a railroad is made by anyone in charge of a wagon and team, such person is bound to look and listen for approaching trains and take every proper precaution to avoid a collision; and this is so even though the approach be made at a time when no regular train is expected to pass; and in case the driver fails to look and listen and to take proper precaution to avoid a collision, and one does occur, the plaintiff cannot recover, even though the defendant was negligent in the first instance.
In Laverentz v. R. R., supra, it is held to be the rule that a person who voluntarily goes on a railroad track at a point where there is an unobstructed view of the track and fails to look or listen for danger, cannot recover for an injury which might have been avoided by so looking and listening; but when the view is obstructed or other facts exist which tend to complicate the question of contributory negligence, it becomes one for the jury.
In Nixon v. R. R., supra, it is held that one, who in (215) full possession of his senses and without having his attention diverted from any cause, passes over a railroad crossing without looking in both directions to see if there is an approaching train, is guilty of contributory negligence and will not be entitled to recover for injuries received from a passing train, though no whistle was sounded nor bell rung from the engine as required by law. Rothrock, J., delivering the opinion, said: "It is true there are exceptions to this rule. There may be such circumstances surrounding the traveler as that his failing to look and listen may exonerate him from the
charge of contributory negligence. The traveler, for instance, may be placed, without his fault, in some dilemma, or some place of danger, where the exigencies of the situation and an emergency may excuse him from going on the track without looking and listening. These circumstances are so varied that they cannot be cited or commented upon in an opinion without unduly extending the subject. They involve obstructions on the track, which prevent an approaching train from being seen by the traveler; and where there are several tracks and trains running on them in different directions, and one train is obscured by another, the fact that the railroad track is in a deep cut and trains can not be seen by a traveler approaching the crossing, or trains following each other in close proximity, which may serve to confuse the traveler and numberless other circumstances from which the jury may be authorized in finding that the traveler exercised the precaution which an ordinarily prudent person would exercise under the same circumstances."
In Rodman v. R. R., supra, it is held that a pedestrian, who crosses a railroad track, must, in the absence of circumstances excusing it, look in each direction and ascertain whether a train is approaching. He may not omit this in reliance upon the performance by the railroad of its duty to give reasonable notice of the approach of the train; and if he does omit (216) it, the neglect of the company to discharge its duty will not relieve him from the imputation of negligence.Andrews, J., further said: "If in case of an accident at a crossing it appears that the person injured did look for an approaching train, it would not necessarily follow as a rule of law that he was remediless because he did not look at the precise place and time when and where looking would have been of some aid. Many circumstances might be shown which could properly be considered by the jury in determining whether he exercised due and reasonable care in making his observation; the presence of other imminent dangers, the raising of gates erected by the company to guard the highway, giving assurance that the crossing was safe; these and similar circumstances appearing, they may be considered in determining whether the person injured, who did in fact look and listen before attempting to cross the track, fairly discharged the duty imposed upon him, although it should appear that if he had looked at another instant of time, or had looked last in the direction from which the train was approaching, he would have seen it."
It will be observed that the circumstances which may at
times excuse the failure of the traveler, who has entered on a railroad crossing, to note the approach of a train, usually arise where the view is obstructed, or in the presence of some imminent danger or emergency sufficient to divert the attention of a person of reasonable fortitude and self-possession, or where one has entered on the crossing under an express or implied invitation of the company's employees giving reasonable assurance of safety.
The last instance more usually occurs at stations where a way has been left open by the company across other tracks for an approach to the station or train, or at much frequented crossings where there are gates raised or an employee charged with the duty has satisfied the traveler that he may cross in safety, and has no application here.
The general rule is that the traveler is required to (217) look and listen for danger, and where there is an unobstructed view he is not relieved of the obligation by the fact that the train has failed to give the ordinary signals of its approach.
The error in the above charge consists in relieving the plaintiff's intestate from all obligation to look and listen, if his not doing so was caused by the negligent failure of the defendant to give proper warnings, where there was evidence tending to show that there was an unobstructed view which would have enabled the intestate to see the train in time to have saved himself by the exercise of reasonable effort.
It is submitted in support of this charge that the objectionable feature is qualified or eliminated by the use of the words "if he exercised that prudence and care which a prudent man would use under the circumstances"; and further "that the failure to look would not be the proximate cause of the injury, if the jury should find from the evidence that with the proper warning the traveler would not have attempted to cross," and it is argued that by reason of these qualifying words, the charge may be referred to certain testimony to the effect that the view was obstructed. Unfortunately for this position, and for the intention here imputed to the judge below, he puts his own, and, as we interpret it, an entirely different construction upon these words, for in his conclusion and just after using them, he says: "Therefore if from the evidence you find that the railroad company failed to give timely warning of its approach to the crossing by sounding the whistle or ringing the bell; and also find that the intestate went upon the crossing without looking or listening, his failure to look and listen would not be the
proximate cause of his death, if with the proper warning he would not have gone upon the track."
It is true the court in several other portions of the charge imposes on the plaintiff the obligation to look and listen whenever the view was unobstructed, but this does not help the matter. Standing apart, the positions are in absolute (218) conflict, and the only way to reconcile them and give each any significance would be to annex the erroneous proposition to the more correct one wherever the same occurs.
Again it is contended that the burden was on the defendant to establish contributory negligence; that there was no evidence tending to show contributory negligence sufficient for the consideration of a jury, and for this reason any error in the charge on that issue should be considered as harmless and immaterial. But this position can not be sustained. Both the evidence on the conduct of the intestate and as to the physical conditions and placing of the occurrence are against it. There was evidence of the defendant tending to show that the intestate was in a covered wagon and that he drove on the crossing without any stop whatever, and with the wagon cover down on the side from which the train approached.
Henry Flintop, on pp. 38 and 39 of the record, testified that he "was in the wagon, going towards Scarlet crossing; while near a branch Cooper's wagon passed the witness and continued up the hill to the crossing; noticed the wagon of intestate nearing the railroad and wondered why they did not stop the team; Cooper was driving; the wagon sheet was down on the right side; the wagon did not slacken its speed or stop, but went right on the crossing; was looking at the wagon all the time."
There was also evidence to the effect that at a point just on the edge of the wagon road and thirteen feet from the center of the railroad track, one could see down the railroad from 500 to 1200 feet in the direction from which the train approached, and photographs were in evidence giving a picture of the view from that point. This was on the edge of the county road, and it may have been taken from that point in order to give the photographer an opportunity to present a picture of the county road where it approached the crossing, as well as the crossing itself. If the camera had been placed in the center or right of the county road, the view down (219) the railroad would have been shortened some, but would still be sufficient to require that the question should be submitted to the jury as to whether the intestate could, by looking, have noted the train's approach in time to have saved
himself by reasonable effort, and with the obligation to look upon him.
There was both contradictory and impeaching testimony for the plaintiff on this question, but the defendant was entitled to have this view presented under a proper and correct charge.
We are further referred to several decisions in this State which, it is argued, are contrary to our present opinion, but none of them, we think, sustain the position for which they are cited. While the headnotes of the different cases may be at times too general, both these and the language of the judge delivering the opinion must be taken in connection with the facts admitted or established, or at least in evidence and assumed to be true, upon which they are predicated; and they are only to be regarded as authoritative decisions when so construed and applied.
Thus in Hinkle v. R. R., 109 N.C. 473, the plaintiff testifies, on page 478, that the plaintiff and his father were on the county road in a covered wagon, and as they traveled along the road he looked out of the wagon two or three times to see if the train was coming; and when they had gone down the hill within about twenty yards of the crossing, he stopped the wagon and listened. The plaintiff then got on the cross pieces of the shaft and held to the wagon with one hand while he rested the other on the horse's rump, and, as his father drove on, he looked and listened, but neither saw nor heard an approaching train.
In Alexander v. R. R., 112 N.C. 720, the view of the track was shut off by cars, etc., and the ordinary noise of the moving train was deadened by the operation of an adjacent cotton factory, etc. The plaintiff testified that before attempting to cross the track he pulled up his horse and listened to hear if there was any approaching train, and, (220) hearing no bell, he ventured on the track and was hurt; that he had heard the bell there, prior to that time, as a warning, etc. There was also an ordinance requiring trains to sound bells at crossings.
In Russell v. R. R., 118 N.C. 1098, the evidence was not set out, but the writer has examined the records and finds that the plaintiff testified that he both looked and listened, and failed to see or hear any train, and drove on the track only after having done this. There was also testimony in this case to the effect that the plaintiff, who was in a buggy, had crossed one railroad track, and was between that and another which she was approaching, when the horse took fright, and her husband, who was driving, lost control over him; and, further,
there were some crossties between the roads which may have partially obstructed the view. Here was testimony that the plaintiff both looked and listened; that the occupants of the buggy were in the presence of an emergency, and further there was evidence tending to show that the view was partially obstructed.
In Norton v. R. R., 122 N.C. 910, the plaintiff stopped, looked and listened at a distance of sixty feet from the track, the nearest point where the view was open to him, and not seeing or hearing any train and relying on the signals he had a right to expect and which the defendant negligently failed to give, he drove on the track and was injured by a train running at an unlawful rate of speed. Here the plaintiff had looked at the only place where looking would have availed him.
In Mesic v. R. R., supra, the distinction here dwelt upon is adverted to by MR. JUSTICE MONTGOMERY. After laying down the obligation on the traveler to look and listen, even though the railroad may have been negligent, he proceeds: "The rule, however, does not prevail where to look would be useless on account of obstructions, natural in themselves, or such as had been placed by accident or design by the company's employees (221) on their tracks * * * and when at the same time the engineer had failed to sound the whistle or ring the bell for the crossing, and in consequence of which failure the plaintiff had been induced to go upon the track and take the risk."
In none of these cases cited and relied upon is the person injured or killed relieved of the obligation to look and listen when the proper and prudent exercise of sight or hearing would have enabled him to save himself by avoiding a collision, and a correct deduction from these and the other cases seems to be:
(1) That a traveler on the highway, before crossing a railroad track, as a general rule, is required to look and listen to ascertain whether a train is approaching; and the mere omission of the trainmen to give the ordinary or statutory signals will not relieve him of this duty.
(2) That where the view is unobstructed, a traveler, who attempts to cross a railroad track under ordinary and usual conditions without first looking, when, by doing so, he could note the approach of a train in time to save himself by reasonable effort, is guilty of contributory negligence.
(3) That where the view is obstructed, a traveler may ordinarily rely upon his sense of hearing, and if he does listen
and is induced to enter on a public crossing because of the negligent failure of the company to give the ordinary signals, this will usually be attributed to the failure of the company to warn the traveler of the danger, and not imputed to him for contributory negligence.
(4) There may be certain qualifying facts and conditions which so complicate the question of contributory negligence that it becomes one for the jury, even though there has been a failure to look or listen, and a traveler may, in exceptional instances, be relieved of these duties altogether, as when gates are open or signals given by watchman, and the traveler enters on the crossing reasonably relying upon the assurance of safety.
None of these positions, however, justify the charge given in the case, which as stated, withdraws all (222) obligation either to look or listen when there has been a negligent failure to give the ordinary warnings, even though there was evidence tending to show there was an unobstructed view.
There was also pressed upon our attention a ruling of the court on a question of evidence, and as the cause goes back for a new trial, we deem it well to determine the matter.
Defendant offered exhibit A, being the plaintiff's inventory of the personal property of the deceased, and exhibit B, being the annual account of plaintiff, as administratrix of the intestate, for the purpose of showing the intestate's capacity to earn and accumulate money. The proposed evidence was excluded by the court and defendant excepted. If these papers should show a large estate, there are so many ways by which it could be explained otherwise than by the capacity of the deceased to accumulate money, and if it is small, there are so many and various ways it could be accounted for, consistent with the highest capacity to earn and acquire, that these admissions, we think, would tend rather to confuse than aid the investigation, and would open up a field of inquiry entirely too extensive and often foreign to the issue. We hold the papers to be irrelevant, and affirm the ruling of the trial judge on that question.
For the error in the charge above pointed out there will be a new trial on all the issues and it is so ordered.
New Trial.