Adasis, J.
The defendant suggests that two inquiries with their necessary implications are sufficient to present the merits of the appeal:
1. Did the court err in overruling the defendant’s motion to nonsuit the action at the close of the evidence?
2. If the demurrer to the evidence was properly overruled, did the court err in peremptorily instructing the jury to answer the issue of contributory negligence in the negative?
The first inquiry raises the two questions whether there is evidence of the defendant’s actionable negligence and whether there is evidence of such contributory negligence on the part of the plaintiff’s intestate as will bar the recovery of damages; the other has reference to the court’s withholding from the jury the question of negligence on the part of the intestate.
The trial court restricted the consideration of the jury to three alleged acts of negligence: (a) the defendant’s failure to give timely warning of the incoming train as it approached the crossing; (b) its failure to keep a proper lookout; (e) its operation of the train within the corporate limits of the town at a rate of speed in excess of fifteen miles an hour.
It was incumbent upon the plaintiff to establish by adequate evidence the actionable negligence of the defendant — the death of the intestate, the defendant’s negligence, and the proximate causal relation; and the sufficiency of the evidence in these respects must be determined by appropriate principles of law.
As the crossing at which the collision occurred is habitually used it was the duty of the defendant in the exercise of reasonable care to keep a careful lookout for danger and to give timely notice or warning of the approach of the train by sounding the whistle or by ringing the bell, or by doing both if necessary, the degree of vigilance being in proportion to the apparent danger. Failure to exercise due care in these respects
would constitute negligence which, if the proximate cause of the intestate’s death, would be actionable.
Collett v. R. R.,
198 N. C., 760;
Redmon v. R. R.,
195 N. C., 764;
Riggsbee v. R. R.,
190 N. C., 231;
Costin v. Power Co.,
181 N. C., 196;
Bagwell v. R. R.,
167 N. C., 611;
Johnson v. R. R.,
163 N. C., 431;
Edwards v. R. R.,
132 N. C., 100.
The ordinance that the plaintiff offered in evidence was obviously intended to prevent injury to person and property and its violation by the defendant was negligence
per se. King v. Pope,
202 N. C., 554;
S. v. Durham,
201 N. C., 724;
Lancaster v. Coach Co.,
198 N. C., 107;
Burke v. Coach Co., ibid.,
8;
Ledbetter v. English,
166 N. C., 125. Of course the failure to observe the ordinance, similarly to the failure to keep a lookout or to give notice that the train was approaching, would'not make a case of actionable negligence in the absence of evidence tending to show that it was the proximate cause of the intestate’s death. If there is evidence in support of the alleged proximate causal result the question was properly submitted to the jury; if not, it should have been determined as a question of law.
Albritton v. Hill, 190
N. C., 429. The defendant insists that it was not negligent in any view but, if it was, that there is no sufficient causal connection between its negligent act and the death of the intestate.
We
are of opinion that there is evidence of such causal relation, and that it differs materially from the evidence in
Hendrix v. R. R.,
198 N. C., 142 and
Thompson v. R. R.,
195 N. C., 663.
Only two witnesses testified as to the signals. Ben Dunn said, “I heard the northbound man blow a crossing blow a good big block away . . . I did not hear a bell; did not hear anything but a crossing blow a block away, about 125 or 150 yards.” Sneed testified, “When I got within 25 or 30 feet of the track I stopped my automobile ... I did not hear any bell or whistle . . . my engine was running until the train got close to me and I cut my engine off then. I could have heard the whistle if it had blown; my engine could not keep enough fuss to keep me from hearing it.”
These two witnesses testified in behalf of the plaintiff. The testimony of one is affirmative and that of the other is negative. While the affirmative testimony of a credible witness is ordinarily more reliable than the negative testimony of an equally credible witness, still testimony that a person near by who could have heard and did not hear the sounding of the whistle is some evidence that no such signal was given.
Earwood v. R. R.,
192 N. C., 27;
Perry v. R. R.,
180 N. C., 290;
Goff v. R. R.,
179 N. C., 219. The charge pointed out the distinction between these two types of evidence and this Court cannot decide as an inference of law which of the two the jury accepted. If the defendant did not give the signal it would not be unreasonable to conclude that its failure in this respect was the proximate cause or one of the proximate causes of the collision.
Tbe speed of tbe train, also, may bave been considered as an element or cause contributing to tbe result. Tbe engine struck tbe rigbt-band rear wheel of tbe automobile, not having “slowed down at all” prior to tbe impact. There is evidence from which tbe jury may reasonably bave inferred that if tbe defendant bad observed tbe ordinance and bad reduced tbe speed from thirty-five or forty to fifteen miles an hour tbe car would bave emerged from tbe zone of danger and the collision would not bave occurred.
Tbe trial court clearly instructed tbe jury in regard to all tbe elements essential to an affirmative answer to tbe first issue — tbe sole negligence of tbe defendant, tbe sole negligence of tbe driver of tbe car, tbe concurrent negligence of both, and tbe necessity of causal relation between tbe defendant’s negligence and intestate’s death; and as to this issue we find no error.
In reference to tbe second issue tbe defendant contends that according to tbe entire evidence tbe plaintiff’s intestate was himself guilty of contributory negligence which defeats tbe right of recovery.
Tbe intestate was not tbe owner of tbe car; be bad no control over it; and there is no evidence that be and tbe driver were engaged in a joint enterprise. They were engaged in tbe common enterprise of riding but they bad no such joint control and direction over tbe automobile as to bave it in their common possession.
Albritton v. Hill, supra.
We bave held that where two proximate causes contribute to an injury tbe defendant is liable if bis negligent act brought about one of such causes and that negligence on the part of tbe driver of a car will not ordinarily be attributed to another occupant.
Smith v. R. R.,
200 N. C.,
177.
These propositions were definitely stated in tbe charge; but they do not imply that “another occupant” of a car may not be negligent. In
Earwood v. R. R., supra,
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Adasis, J.
The defendant suggests that two inquiries with their necessary implications are sufficient to present the merits of the appeal:
1. Did the court err in overruling the defendant’s motion to nonsuit the action at the close of the evidence?
2. If the demurrer to the evidence was properly overruled, did the court err in peremptorily instructing the jury to answer the issue of contributory negligence in the negative?
The first inquiry raises the two questions whether there is evidence of the defendant’s actionable negligence and whether there is evidence of such contributory negligence on the part of the plaintiff’s intestate as will bar the recovery of damages; the other has reference to the court’s withholding from the jury the question of negligence on the part of the intestate.
The trial court restricted the consideration of the jury to three alleged acts of negligence: (a) the defendant’s failure to give timely warning of the incoming train as it approached the crossing; (b) its failure to keep a proper lookout; (e) its operation of the train within the corporate limits of the town at a rate of speed in excess of fifteen miles an hour.
It was incumbent upon the plaintiff to establish by adequate evidence the actionable negligence of the defendant — the death of the intestate, the defendant’s negligence, and the proximate causal relation; and the sufficiency of the evidence in these respects must be determined by appropriate principles of law.
As the crossing at which the collision occurred is habitually used it was the duty of the defendant in the exercise of reasonable care to keep a careful lookout for danger and to give timely notice or warning of the approach of the train by sounding the whistle or by ringing the bell, or by doing both if necessary, the degree of vigilance being in proportion to the apparent danger. Failure to exercise due care in these respects
would constitute negligence which, if the proximate cause of the intestate’s death, would be actionable.
Collett v. R. R.,
198 N. C., 760;
Redmon v. R. R.,
195 N. C., 764;
Riggsbee v. R. R.,
190 N. C., 231;
Costin v. Power Co.,
181 N. C., 196;
Bagwell v. R. R.,
167 N. C., 611;
Johnson v. R. R.,
163 N. C., 431;
Edwards v. R. R.,
132 N. C., 100.
The ordinance that the plaintiff offered in evidence was obviously intended to prevent injury to person and property and its violation by the defendant was negligence
per se. King v. Pope,
202 N. C., 554;
S. v. Durham,
201 N. C., 724;
Lancaster v. Coach Co.,
198 N. C., 107;
Burke v. Coach Co., ibid.,
8;
Ledbetter v. English,
166 N. C., 125. Of course the failure to observe the ordinance, similarly to the failure to keep a lookout or to give notice that the train was approaching, would'not make a case of actionable negligence in the absence of evidence tending to show that it was the proximate cause of the intestate’s death. If there is evidence in support of the alleged proximate causal result the question was properly submitted to the jury; if not, it should have been determined as a question of law.
Albritton v. Hill, 190
N. C., 429. The defendant insists that it was not negligent in any view but, if it was, that there is no sufficient causal connection between its negligent act and the death of the intestate.
We
are of opinion that there is evidence of such causal relation, and that it differs materially from the evidence in
Hendrix v. R. R.,
198 N. C., 142 and
Thompson v. R. R.,
195 N. C., 663.
Only two witnesses testified as to the signals. Ben Dunn said, “I heard the northbound man blow a crossing blow a good big block away . . . I did not hear a bell; did not hear anything but a crossing blow a block away, about 125 or 150 yards.” Sneed testified, “When I got within 25 or 30 feet of the track I stopped my automobile ... I did not hear any bell or whistle . . . my engine was running until the train got close to me and I cut my engine off then. I could have heard the whistle if it had blown; my engine could not keep enough fuss to keep me from hearing it.”
These two witnesses testified in behalf of the plaintiff. The testimony of one is affirmative and that of the other is negative. While the affirmative testimony of a credible witness is ordinarily more reliable than the negative testimony of an equally credible witness, still testimony that a person near by who could have heard and did not hear the sounding of the whistle is some evidence that no such signal was given.
Earwood v. R. R.,
192 N. C., 27;
Perry v. R. R.,
180 N. C., 290;
Goff v. R. R.,
179 N. C., 219. The charge pointed out the distinction between these two types of evidence and this Court cannot decide as an inference of law which of the two the jury accepted. If the defendant did not give the signal it would not be unreasonable to conclude that its failure in this respect was the proximate cause or one of the proximate causes of the collision.
Tbe speed of tbe train, also, may bave been considered as an element or cause contributing to tbe result. Tbe engine struck tbe rigbt-band rear wheel of tbe automobile, not having “slowed down at all” prior to tbe impact. There is evidence from which tbe jury may reasonably bave inferred that if tbe defendant bad observed tbe ordinance and bad reduced tbe speed from thirty-five or forty to fifteen miles an hour tbe car would bave emerged from tbe zone of danger and the collision would not bave occurred.
Tbe trial court clearly instructed tbe jury in regard to all tbe elements essential to an affirmative answer to tbe first issue — tbe sole negligence of tbe defendant, tbe sole negligence of tbe driver of tbe car, tbe concurrent negligence of both, and tbe necessity of causal relation between tbe defendant’s negligence and intestate’s death; and as to this issue we find no error.
In reference to tbe second issue tbe defendant contends that according to tbe entire evidence tbe plaintiff’s intestate was himself guilty of contributory negligence which defeats tbe right of recovery.
Tbe intestate was not tbe owner of tbe car; be bad no control over it; and there is no evidence that be and tbe driver were engaged in a joint enterprise. They were engaged in tbe common enterprise of riding but they bad no such joint control and direction over tbe automobile as to bave it in their common possession.
Albritton v. Hill, supra.
We bave held that where two proximate causes contribute to an injury tbe defendant is liable if bis negligent act brought about one of such causes and that negligence on the part of tbe driver of a car will not ordinarily be attributed to another occupant.
Smith v. R. R.,
200 N. C.,
177.
These propositions were definitely stated in tbe charge; but they do not imply that “another occupant” of a car may not be negligent. In
Earwood v. R. R., supra,
it was said that tbe negligence of tbe driver was not imputable to a guest because there was no evidence of a joint enterprise or that tbe guest bad any control of tbe car or bad failed to perform any duty imposed upon him by law. In
Smith v. R. R., supra,
tbe duty imposed upon tbe guest is stated as follows: “Conceding it was bis duty, although merely a passenger in tbe automobile, with no control over tbe driver, to keep a reasonable lookout for engines and trains on defendant’s track, as tbe automobile approached tbe crossing, and to warn tbe driver of tbe impending danger of a collision, if it was apparent to him that tbe driver bad not seen tbe engine and tender or having seen them, did not appreciate tbe danger of a collision, it cannot be held that all tbe evidence upon this aspect of tbe case showed that Boyd Smith failed to perform this duty, and that such failure was a proximate cause of tbe collision resulting in bis death. If be saw, or by tbe exercise of reasonable care, could bave seen no more than tbe driver and bis fellow-passenger, who were under a like
duty, saw, it was for tbe jury and not for the court to determine whether or not, under all the circumstances, he contributed to his death by his own negligence. If when he saw, or by the exercise of reasonable care, could have seen that an engine and tender on defendant’s track was approaching the crossing, he also saw that the driver had seen the approaching engine and tender, and with full appreciation of the impending danger, was doing all in his power, under the circumstances, to avoid a collision, it was for the jury and not for the court to say whether or not his failure to speak to the driver and warn him of the danger was negligence. It is a matter of common knowledge to those who ride in automobiles — certainly to those who drive them — that ‘backseat’ driving often confuses a driver, and more often than otherwise, prevents him .from avoiding dangers encountered on the road.” 200 N. C., 181.
The defendant had the burden of showing the contributory negligence of the intestate as a proximate cause of the injury and death — that is, that the intestate failed to exercise ordinary care and that his death was the proximate result of his negligence. In applying to the evidence the principle stated in
Smith v. R. R., supra,
the defendant says: “The guest not only did not warn the driver or make any protest, but did not himself take any steps to avoid the injury.”
Wo are unable to concur with the defendant in this construction of the evidence. A careful inspection of the testimony fails to disclose any proof that the guest did not warn the driver or make any protest or take any action to prevent the collision. It fails to show, as stated in the
Smith case,
that it was apparent to the intestate that the driver did not see the train and did not appreciate the danger. It was probably upon this theory that the court held there was no sufficient evidence of contributory negligence.
After due consideration of all the exceptions appearing in the defendant’s brief we find
No error.