Walker, J.,
after stating the case: The defendant’s motion for a nonsuit upon the evidence, and its request for a peremptory instruction to answer the issues in its favor, were both properly denied. The rule as to the treatment of the evidence upon such a question is not only very familiar, but has been stated in various ways so clearly and with so much repetition as to have become somewhat trite and even hackneyed. We must again say that we are not at liberty to select those portions of the testimony more favorable to a defendant, in such a case, than the rest and act upon it for his special benefit. Such an imposing array of the evidence in his behalf would be not only one-sided, when we are required to hear both sides equally and fairly, but would manifestly be partial and unjust. The rule is rather the other way. We restated it concretely in the recent case of Osborne v. R. R., 160 N. C., 309, much like ours in its essential facts, though not literally so. Some of the language then used will practically fit almost any case, and is [442]*442surely applicable to the one at bar. We there ,said: “Defendant requested the court to enter a judgment of nonsuit upon the evidence, as plaintiff’s intestate was guilty of such contributory negligence in driving upon the crossing, without looking or listening, as barred his recovery. The judge could not have done so without deciding an issue of fact, which he is forbidden to do, that being the function of the jury. Pell’s Revisal, sec. 535, and cases cited in note. The evidence favorable to defendant’s view of the case may be ever so strong and persuasive, but if there is a conflict of testimony, it must be left to the jury, and they must find the facts. This is a case where there was a serious dispute as to the facts, which of course carried the case to the jury. It is our duty, upon a motion for a nonsuit, to consider the evidence in the view most favorable to the plaintiff, for at least one reason, which is, that the jury may adopt his version of the facts as the true one. It would be contrary to all'our decisions to discard the proof in his favor and consider only that favorable to the defendant, or to permit the latter to overthrow the former, even if it is more reasonable and convincing. Such a course would contravene the express terms of the statute, and would nullify its plain and explicit injunction, that we, as judges, should confine ourselves to the law of the case and leave the finding of facts to the jury.” See Brittain v. Westall, 135 N. C., 492; Deppe v. R. R., 152 N. C., 80; Hamilton v. Lumber Co., 156 N. C., 519. We would not hazard much, if anything, by stating broadly that Osborne's case, just cited, seems to cover this case as with a blanket, and we may refer to it later in order to show the striking similarity between the two.
As generally pertinent to the case in hand, we may formulate the following rules:
1. Where a railroad track crosses a public highway, both a traveler and the railroad have equal rights to cross; but the traveler must yield the right of way to the railroad company in the ordinary course of the latter’s business. Duffy v. R. R., 144 N. C., 26.
2. While a train has the right of way at a crossing, it is the duty of the engineer to give signals and exercise vigilance in [443]*443approaching such crossings. Coleman v. R. R., 153 N. C., 322.
3. A railroad company and a traveler on a highway crossing are charged with a mutual duty of keeping a careful lookout for danger, and the degree of vigilance is in proportion to the known danger; the greater the danger, the greater the care required of both. R. R. v. Hansbrough's Administratrix, 107 Va., 733.
4. On reaching a railroad crossing, and before attempting to go upon the track, a traveler-must use his sense of sight and of hearing to the best of his ability under the existing and surrounding circumstances — he must look and listen in both directions for approaching trains, if not prevented from doing so by the fault of the railroad company, and if he has time .to do so; and this should be done before he has taken a position exposing him to peril or has come within the zone of danger, this being required so that his precaution may be effective. Cooper v. R. R., 140 N. C., 209; Coleman v. R. R., 153 N. C., 322; Wolfe v. R. R., 154 N. C., 569, in the last of which cases the rule was applied to an employee charged with the duty of watching a crossing and warning travelers of the approach of trains, and he was required to exercise due care, under the rule of the prudent man, for his own safety by looking and listening for coming trains.
5. The duty of the traveler arising under this rule is not always an absolute one, but may be so qualified by attendant circumstances as to require the issue as to his contributory negligence, by not taking proper measures for his safety, to be submitted to the jury. Sherrill v. R. R., 140 N. C., 255; Wolfe v. R. R., supra.
6. If he fails to exercise proper care within the. rule stated, it is such negligence as will bar his recovery: Provided, always, it is the proximate cause of his injury. Cooper v. R. R., supra; Strickland v. R. R., 150 N. C., 7; Wolfe v. R. R., supra.
7. If his view is obstructed or his hearing an approaching train is prevented, and especially if this is done by the fault of the defendant, and the company’s servants fail to warn him of its approach, and induced by this failure of duty, which has lulled him into security, he attempts to cross the track and is [444]*444injured, having used bis faculties as best be could, under the circumstances, to ascertain if there is any danger ahead, negligence will not be imputed to him, but to the company, its failure to warn him being regarded as the proximate cause of any injury he received. Mesic v. R. R., 120 N. C., 490; Osborne v. R. R., supra.
8. If a traveler is without fault, or if his fault is either excused by some act of the company or is not the proximate cause of his injury, the company having the last clear chance, and if in attempting to cross track on a highway he is-suddenly confronted by a peril, he may without the imputation of negligence adopt such means of extrication as are apparently necessary, and is only held to such measure of care as a man of ordinary prudence would exercise in the same circumstances. Vallo v. Express Co., 14 L. R. A., 745; Lincoln v. Nichols, 20 L. R. A., 855; Crampton v. Ivie Bros., 124 N. C., 591, and especially Douglas v. Railway, 82 S. C., 71; 3 Elliott on Railroads (2 Ed.), sec. 1173.
With these general rules to guide us, the solution of the question presented will not -be difficult.
This young boy rode up to' the crossing on his bicycle and, as he testified, looked and listened for a train. He saw one pass, composed of an engine and box cars, the latter being shifted by the engine. He could not see to the west, because of box cars standing on one of the tracks, which obstructed his view. He did look to the east at the moving train, believing, and having-good reason to' believe, that it was coming back, and not suspecting that it had detached cars for the purpose- of making a “flying switch.” He did not and could not hear the noise of the loose cars as they came up to the crossing, for he could not see them through the solid intervening cars, and no warning was given of their approach, the first notice he had of them being the cry of a woman, which he heard at the very time he was stricken by the cars and knocked under them. He, therefore, had no chance to escape. There was no one on the loose cars to give him a signal, to leave the track, and the cars on -the adjoining track were so near the crossing as to render such a signal ineffective if it had been given. This is his version, and if [445]*445accepted as true by the jury, it made out a perfect case for him.
Defendant denied it, and alleged that he voluntarily rode between the cars in a negligent manner, not made very clear, and fell from his wheel under the cars 'and was crushed as he described. . They allege that there was a man on the cars to warn those using the crossing, and that a proper and effective signal was given by him and the woman, which was disregarded.
In this conflict of views, the jury were the proper and only arbiters. They found for the plaintiff, and, as we must assume, under proper instructions from the court, as this part of the charge is not in the record, error not being presumed unless alleged and shown. This being so, the facts are as stated by the plaintiff, and he was, therefore, justly and legally entitled to the verdict. If we should nonsuit him or direct a verdict, it would be to reject all of his evidence in favor of that of defendant, which is out of the question.' "We must adopt his and reject the defendant’s, except so far as the latter makes in his favor.
In this view of the facts, what are the legal questions involved and ultimate rights of the parties under them? This Court has recently declared, in Vaden v. R. R., 150 N. C., 700, that, “Making ‘flying switches’ on the railway tracks and sidings running across and along the streets of populous towns is per se gross negligence, and has been so declared by all courts in this country and by text-writers generally. It is stated in one of the best known text-books that the use of a running switch in a highway in the midst of a populous town or village is, of itself, an act of gross and criminal negligence on the part of the company,’ ” citing Shearman and Redf. Neg. (3 Ed.), sec. 466; Wilson v. R. R., 142 N. C., 333; Allen v. R. R., 145 N. C., 214; Bradley v. R. R., 126 N. C., 742; Farris v. R. R., 151 N. C., 483; R. R. v. Smith, 18 L. R. S., 66, to which is appended a most valuable note upon this subject. In this respect, the Vaden case and this one cannot possibly be distinguished.
So we see that defendant was “grossly” in fault at the very inception of this lamentable occurrence. It started wrong in the beginning and continued wrong throughout. It had set a death-trap for the passer-by and the plaintiff unwarily, but [446]*446without fault, was caught in it, and came very near losing his young life. Will the railroads never stop doing, in this respect, what the courts have so emphatically condemned as contrary to law and humanity ? If plaintiff had been killed, upon the facts found by this jury, the person to blame for his death would have been guilty of manslaughter for his palpable negligence with full knowledge of its dangerous tendency. Not only did defendant make the dangerous “flying switch,” but by its negligent conduct in concealing the moving of the detached car?, and by failing to give proper signals or warning to travelers using the crossing, it threw the plaintiff off his guard and enticed him into the trap.
The jury having repudiated the defendant’s version of the facts and accepted the plaintiff’s, there is no room left for the argument that the latter was guilty of contributory negligence, because they have found that he looked and listened and was prevented from any effective use of his faculties or his senses by the wrongful conduct of defendant in moving its cars rapidly without an engine, where they could not be seen, or the noise of their movement heard by plaintiff, and failing to give any warning of their approach. There is no logic that can withstand such an array of facts, and no law which justifies or excuses the defendant’s conduct. It is like Wolfe's case,- in.that plaintiff’s attention was riveted on the moving train that had just passed with every indication of its immediate return; and the resemblance does not end here, for-Wolfe’s view to the east was obstructed by cars standing on a side-track, just as plaintiff’s view to the east was, in this case, obstructed by cars similarly situated. Wolfe v. R. R., 154 N. C., 569. While a greater degree of vigilance is required of a traveler than of an employee engaged in the performance of other duties for defendant, as in the instance of Wolfe, the principle underlying the two cases is essentially and broadly the same.
Justice Manning said in Farris v. R. R., 151 N. C., 483: “While we are in-no wise inclined to relieve the person crossing the tracks of a railroad from the imperative duty of observing the measure of caution so well established for his safety by the well considered decisions of this and other courts, yet it cannot [447]*447always be said tbat be is guilty of contributory negligence, as a matter of law, because he did not continue to look and listen at all times continuously for approaching trains, where he was misled by the company or his attention was rightfully directed.to something else as well.”
The crucial facts are that plaintiff did look and listen, and seems to have done the best he could under the circumstances. His suspicion was disarmed by the defendant’s fault, and he did not, therefore, anticipate any danger in crossing at the time he did.
All this brings this case under the direct control of Osborne v. R. R., 160 N. C., 309, which is peculiarly analogous to it. ¥e there said: “Applying these principles to the case, it will appear by a bare reading of the evidence that it should not have been withdrawn from the jury by granting a nonsuit. The jury, by their verdict, evidently found that the intestate and J. E. Puckett did look and listen, in the exercise of that-degree of care characteristic of the man of ordinary prudence, and, further, that no signal from the approaching train was given. In Mesic v. R. R., 120 N. C., 490, after stating- that it is the duty of a traveler on the highway, when he approaches a railroad crossing, to look and listen, even though the railroad may have been negligent, the Court says: ‘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 accL dent or design by the company’s employees 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 this failure the plaintiff had been induced to go upon the track and take the risk,’ ” citing Hinkle v. R. R., 109 N. C., 473; Alexander v. R. R., 112 N. C., 720; Russell v. R. R., 118 N. C., 1098; Norton v. R. R., 122 N. C., 910. See, also, Inman v. R. R., 149 N. C., 126; Morrow v. R. R., 146 N. C., 14; Norton v. R. R., supra, and Farris v. R. R., 151 N. C., 483.
Judge Elliott states the rule to be that “where the employees of a railroad company by negligent or wrongful acts mislead a traveler, and put him off his guard, the company may be liable, although the traveler may have done that which, but for the [448]*448wrongful or negligent acts of tbe company, must have been considered negligence on bis part.” He adds that tbe traveler, though, must-continue to exercise ordinary care to avoid injury, according to the better reasoned decisions. Rut this is but another form of stating- tbe general principle, that if tbe situation and surroundings are suggestive of danger, ordinary care must be used to avoid it. If tbe traveler is deceived by appearances produced by tbe negligent act of tbe railroad employees, in such way and to tbe extent that a man of ordinary prudence would not anticipate danger, tbe company cannot take advantage of its own wrong and impute tbe blame to him so as to defeat bis action. ' '
The railroad company must abandon tbe device of tbe flying-switch as a means of shifting its cars, which has been strongly condemned by us, as we have seen, or it must take tbe consequences of its causing injury to persons in tbe lawful use of its ’crossings, or at least, it must, by proper signals, whether from tbe top of tbe car or on tbe crossing, and by tbe exercise of that degree of care which is commensurate with tbe danger it has produced or'enhanced, provide against resulting damage.
Maxton is a populous town, one of our largest and most prosperous, and this crossing is much used by tbe public, including school children. Common prudence demands that care, duly proportioned to tbe great risk they incur when they cross its tracks, should be taken in order that it will not be. further increased by tbe continuance of unnecessary and highly dangerous methods in tbe operation of trains.
This case illustrates tbe danger of the “flying switch” and shows bow easily it may entrap tbe unsuspecting traveler:
1. Tbe following car was not coupled to an engine, which by its noise and smoke, its bell or whistle, would attract attention, and being, much lighter, it moved almost noiselessly.
2. Tbe engine with its cars bad passed, making noise by ringing its bell and otherwise at tbe other' end of tbe track, and by its movements indicating its return..
3. No one was at tbe crossing- to signal that shifting was in progress.
4. Tbe traveler relies upon tbe reasonable supposition that there is no danger ahead, and goes on, not anticipating that [449]*449defendant,' in violation of tbe law, would make a flying switch, especially under such circumstances. 2 Thompson on Neg., secs. 1612, 1697 and note.
Add to all this the intervening line of cars which entirely obstruct his view and conceal the impending danger, and the trap is complete.
We do not impute any moral wrong to defendant, as we are dealing only with the legal aspect of the case; but the defendant was negligent to the point of recklessness, even if its acts were thoughtlessly and not intentionally' committed.
The second exception is clearly untenable. It was irrelevant to the controversy that the witness C. C. Hatch had measured other box cars, unless it had been shown that the box cars near or at this crossing.were of the same dimensions. It is admitted that there is no uniformity in the width of box cars, and that those on the oil mill siding, which obstructed plaintiff’s view, were not measured by the witness or any one else. The rule for estimating or judging one thing by its resemblance to another, therefore, does not apply, as at least substantial identity between them must first be shown before it is admissible to institute the comparison, so that you may reason from one to the other, for the purpose of proving the objective fact. This is so in regard to values, and is equally so as to size, quality, and quantity or any other characteristic which admits of comparison. If the car‘-at the crossing had been measured, no comparison would have been necessary. It is similitude that opens the door to this kind of evidence and lets it in. We have so held. Warren v. Mackeley, 85 N. C., 12; Chaffin v. Manufacturing Co., 135 N. C., 95. Without this element, the evidence, if admitted, would be purely conjectural, and would introduce irrelevant and diverting matters, confusing to the jury and prolonging the trial indefinitely. Waters v. Roberts, 89 N. C., 145. We have assumed, for the sake of argument, that the question would otherwise be competent and relevant, which is by no means clear or to be taken as granted, and for that reason have left out of consideration other reasons assigned in support of the court’s ruling.
[450]*450Plaintiff was permitted to show, against defendant’s objection, that Bonnie Helms, one of its witnesses and employed as its brakeman, bad come to the place of trial on a free pass, given to him by defendant. The purpose was to show bis bias. Wigmore says in bis work on Evidence (vol. 2, sec. 949) : “The range of external circumstances from wbicb probable bias may be inferred is infinite. Too mucb refinement in analyzing tbeir probable effect is out of place. Accurate, concrete rules are almost impossible to formulate, and, where possible, are usually undesirable. In general, these circumstances should have some clearly apparent force, as tested by experience of human nature, or, as it is usually put, they should not be too remote. The relation of employment, present or past, by cne of the parties, is usually relevant.” But the very point was squarely decided in R. R. v. Johnston, 128 Ala., 283, where it is said: “A witness may be questioned on cross-examination about matters which tend to show bias or partiality towards the party by whom he is introduced; and in an action against a railroad company to recovef damages it is permissible for the plaintiff, on cross-examination of witnesses introduced by the defendant, to show that they were furnished free transportation for their attendance on the trial, or that they were given the general privilege of riding on the defendant’s "road; such evidence having a tendency towards establishing a bias on the part of such witnesses.” See 1 Greenleaf Ev. (16 Ed.), 450. The case of Cecil v. Henderson, 119 N. C., 423, cited by counsel for defendant, is not applicable. The two questions are essentially different.
The defendant moved in the court below to set aside the verdict because it is against the weight of the evidence and the damages are grossly excessive, and the motion was pressed in this Court with zeal by counsel; but we must deny it, as we are not authorized to try the facts or to revise the findings of the jury in a case like this; nor do we assent to the claim that the damages are grossly or “shockingly” excessive. We are not, therefore, at liberty to review the ruling against defendant on the motion, but must leave it as we find it, the final appeal in such cases being to the presiding judge, and we may [451]*451add that there is nothing in the evidence to show that his discretion was not properly exercised; nor are we willing to intimate that we would reverse if we had the power to review. The eminently just judge before whom the case was tried would not have hesitated to set aside the verdict if, upon a fair consideration of the piroof, it was right to do so. We have just said, at this term, in Pender v. Insurance Co., ante, 98: “There was some evidence, which was properly submitted to the jury, and the defendant having failed to have the verdict set aside by the judge below, because it was against the weight of the evidence, must abide by the result as final and beyond our control. We can review by appeal ‘any decision of the courts below upon any matter of law or legal inference,’ but in jury trials, at least, our jurisdiction ends when that is done. We cannot review findings of fact in such cases. Const., Art. IV, sec. 8.” See Benton v. R. R., 122 N. C., 1007, and cases therein cited.
We are of the opinion, though, that there was an error in the charge as to damages. The three clauses in the charge to which exceptions were specially reserved in the assignment of errors are these:
1. “He is entitled to the difference between what he would make if the injury had not been done and what he would make with it done.”
2. “If you reach this issue, and say what is the value of his diminished, earning capacity, then when you do that, you are to add reasonable compensation for his pain and suffering.”
3. “He is entitled to the difference between what he would make if the injury had not been done and what he would make with it done”; and the following: “If you reach this issue, and say what is the value of .his diminished earning'capacity, then when you do that, you are to add compensation for his pain and suffering”; also the following: “and when you ascertain that, you add that to such amount as you may have determined to be the amount to which his earning capacity has “been diminished by the injury.” The same instruction was given in Fry v. R. R., 159 N. C., 357, 362. It will be sufficient to sustain this exception that we refer to that case and what we there decided. We there said: “There was error in the following [452]*452instruction as to damages: ‘If you find tbat be bas been permanently injured, and 'tbat sueb injury partially incapacitates him to earn money, tben be would be entitled to recover damages for partial incapacity, if you find tbe injury was caused by tbe negligence of tbe defendant. He would be entitled to recover tbe difference between wbat be is able to earn at tbe present time, and in tbe future, and wbat be would bave been able to earn if tbe accident bad not happened; and passing upon bis expectancy, tbe mortuary table bas been read to you, and you will bear tbat in mind in awarding damages, if you find tbat tbe plaintiff is entitled to recover anything.’ In an action for injuries by negligence, such as this one, tbe plaintiff is only entitled to recover tbe reasonable present value of bis diminished earning capacity in tbe future, and not tbe difference between wbat be would be able to earn in tbe future but for such injury, and such sum as be would be able to earn in bis present condition. R. R. v. Paschall, 92 S. W., 446. Where future payments for tbe loss of earning power are to be anticipated by tbe jury and capitalized in a verdict, tbe plaintiff is entitled only to their present worth. Goodhardt v. R. R., 177 Pa. St., 1. Tbe damages to be awarded for a negligent personal injury resulting in a diminution of earning power is a sum equal to tbe present worth of such diminution, and not its aggregate for plaintiff’s expectancy of life. O'Brien v. White, 105 Me., 308. Tbe rule, as we see, may be stated with varying phraseology, but it all carries tbe same idea, tbat tbe estimate should be based upon tbe present value of tbe difference between plaintiff’s earning capacity, and not tbe total difference caused by tbe injury. Tbe rule is supported by many authorities in this and other jurisdictions. Pickett v. R. R., 117 N. C., 616; Wilkinson v. Dunbar, 149 N. C., 20; Benton v. R. R., 122 N. C., 1007; Watson v. R. R., 133 N. C., 188; R. R. v. Carroll, 184 Fed. Rep., 772; Fulsome v. Concord, 46 Vt., 135; Kenny v. Folkerts, 84 Mich., 616.” In Pickett v. R. R., 117 N. C., 616, a similar instruction was held (opinion by Avery, J.) to be objectionable, because “it left tbe date which should be tbe basis of tbe calculation, to say tbe least, uncertain, if tbe language was not susceptible of tbe construction tbat tbe net in[453]*453come would, be estimated as of the period when those dependent on him would have realized the benefit of his labor had he not come to an untimely end.” It is there said that the jury should ' be told that it is the present value of the net earnings or income, the rule being stated succinctly and clearly in the seventh headnote of the case. The identical rule is laid down in Benton v. R. R., 122 N. C., 1007 (opinion by Clark, J.), citing Pickett’s case; Burton v. R. R., 82 N. C., 504; Kesler v. R. R., 66 N. C., 154. This is not merely the just and reasonable rule, where all the damages are to be awarded and paid presently, and not as they accrue in the future, but it is the' only one' admissible under the statute, and it is said in Bentons case to have been established by the precedents., Any other principle, if adopted, would enable, a plaintiff to recover more than could possibly be earned, as no man realizes at once the full earnings or accumulations of a lifetime.
There must be a new trial of the issue as to damages, and it is restricted to that issue, as was done in Tillett v. R. R., 115 N. C., 662; Pickett v. R. R., supra; the error relating only to the damages.
New trial.
Walker, J.
Since this case was argued, the defendant has moved for a new trial, upon the ground of newly discovered evidence. Applications. of this kind, as we have held, should be carefully scrutinized and cautiously examined, and the burden is upon the applicant to rebut the presumption that the verdict is correct and that there has been a lack of due diligence. 14 Am. and Eng. Enc. Pl. and Pr., 790. We require, as prerequisite to the-granting of such motions, that it shall appear by the affidavit: (1) That the witness will give the newly discovered evidence; (2) that it is probably true; (3) that it is competent, material, and relevant;. (4) that due diligence has been used and the means employed, or that there has been no laches, in procuring the testimony at the trial; (5) that it is not merely cumulative; (6) that it does not tend only to contradict a former witness or to impeach or discredit him; (7) that it is of such a nature as to show that on another trial a different result will probably be reached and that the right will [454]*454prevail. Turner v. Davis, 132 N. C., 187; S. v. Starnes, 97 N. C., 423; Brown v. Mitchell, 102 N. C., 347; S. v. DeGraff, 113 N. C., 688; Schehan v. Malone, 72 N. C., 59; Mottu v. Davis, 153 N. C., 160; Aden v. Doub, ibid., 434. When we examine tbe affidavit of Hector Austen, and the others, upon whieh the defendant bases its motion for a new trial, we find that they fall far short of complying with the rule we have just stated. In some respects the proposed testimony is merely cumulative, and in others it only tends to contradict or impeach the plaintiff’s witnesses at the trial. It is not very definite. The witness does not speak with sufficient positiveness and directness to give us the slightest assurance that there will be a different result if we grant the application. He states that the brake was not applied to the car making the flying switch, which would tend rather to strengthen than to weaken the plaintiff’s case. It is not satisfactorily shown that the testimony of the witness, if desired, could not have been secured at the trial by the exercise of proper diligence. "We are convinced that the testimony, if it had been introduced before, would not have changed the result. We refer now to the second affidavit of Hector Austen, made in behalf of plaintiff.'
Motion denied.