Avery, J.
after stating the facts: The first assignment of error rests upon the refusal of the Court below to render judgment in favor of the plaintiff upon the verdict. The plaintiff declared in his complaint that he was walking upon the track of the defendant company in returning from his place of business, “ as he had been in the habit of doing for several years, without objection from the defendant, within the corporate limits of the town of Greensboro, when, owing to gross negligence of the defendant’s servants, he was struck from behind by a locomotive engine, belonging to the defendant, &c., and thrown from the track, and was, thereby, much injured,” &c. To the issue, “ Was the plaintiff injured by the negligence of the defendant, as alleged?” the jury responded “Yes,” while they found, in answer to the second issue, that the plaintiff, by his own negligence, contributed to cause the injury.
[149]*149The most learned and discriminating text-writers concur in the opinion that in actions arising px delicto there is no' degree of negligence that can be described by the word “gross,” alone. But where an injury is due, and can be traced directly to the wilful act of another, he is not absolved from liability by the concurrent negligence of the injured party, as he is not, where, by the exercise of ordinary care, he could, notwithstanding the fault of the injured party, have saved the latter harmless. Shearman & Redfield on Negligence, §§ 36 and 37; Cooley on Torts, p. 674. Hence, we often find, in opinions emanating from this and other Courts, the expression “gross and wanton negligence;” but the former word is never used to describe a degree of carelessness that will excuse the fault of a plaintiff in exposing himself to dánger, except where it is improperly held synonymous with either the word wilful, malicious or fraudulent. Shearman & Redfield on Negligence, §3; Wilds v. Hudson R. R. Co., 24 N. Y., 430; Cattawissa Railroad Co. v. Armstrong, 49 Penn. St., 186; Neal v. Gillett, 23 Conn., 437; Cunningham v. Lyness 22 Wis. 245; Sandford v. Eighth Avenue R. R. Co., 23 N. Y., 343. Wharton (in his work on Negligence, § 64) maintains that, outside of the rule applicable to common carriers (which makes them, according to the circumstances, either insurers or bound to show the care of a prudent man in the conduct of his own business, or liable for gross negligence), there are no recognized degrees of negligence, or negligence that can be described by the words “ slight” or “gross.” Calbreth v. Philadelphia, &c., R. R. Co.; 3 Houston, 392; Wharton on Negligence, §500. In Steamboat “New World” v. King, 16 Howard, 474, Justice Curtis, for the Court, goes much further when he says, speaking of actions arising out of contract, as well as tort: “If the law furnishes no definition of the terms gross negligence or ordinary negligence, which can be applied in practice, but leaves it to the jury to determine in each case what the duty [150]*150was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuccessful attempts to define that duty had better be abandoned.”
If the plaintiff had alleged that the defendant company, or its servants, had wilfully, wantonly, purposely or maliciously run an engine against and injured him, a very different question would have been presented. In Manly v. The W. & W. R. R. Co., 74 N. C., 655, this Court said: “When the injury arises neither from malice, design, nor wanton and gross neglect, hut simply the neglect of ordinary care, and the parties are mutually in default, the negligence of both being the immediate and proximate cause of the injury, a recovery is denied, upon the ground that the injured party must be taken to have brought the injury upon himself. That case was subsequently cited with approval as to the first point in Rigler v. The Railroad Co., 94 N. C., 610, and in Walker v. Town of Reidsville, 96 N. C., 382. See also The Evansville, &c., Railroad Co. v. Lowdermilk, 15 Ind., 120; The Lafayette, &c., Railroad Co. v. Adams, 26 Ind., 76; 2 Woods’ R. L., 319.
We think, therefore, that as the plaintiff did not declare that the engineer or fireman inflicted the injury wilfully, wantonly, or through malice, the word “gross” must be treated as a mere expletive, and the use of it, as characterizing the negligence alleged, makes no material difference in the meaning of the complaint; and the finding that the plaintiff was injured, “ as alleged,” must be treated as an affirmative response to an issue involving only the question, whether the defendant failed to exercise ordinary care in the management of the engine, and thereby injured the plaintiff.
As the jury found, in answering the second issue, that the plaintiff, by his concurrent negligence, contributed to cause the injury, the judgment rendered must stand, unless there was error in misdirecting the jury. Manly v. Railroad, [151]*151supra; Smith v. Railroad, 99 N. C., 241; Troy v. Railroad, 99 N. C., 298; Chambers v. Railroad, 91 N. C., 471; Turrentine v. Railroad, 92 N. C., 638; Rigler v. Railroad, supra.
In reference to framing issues lor the consideration of the jury, this Court has, by repeated adjudications, determined—
1. That only issues of fact raised by the pleadings must be submitted to the jury. Wright v. Cain, 93 N. C., 296; Carpenter v. Tucker, 98 N. C., 316; Emry v. Railroad, 102 N. C., 209.
2. The verdict, whether upon one or many issues, must establish facts sufficient to enable the Court to proceed to judgment. Emry v. Railroad, supra.
3. Of the issues raised by the pleadings, the Judge who tries the case may, in his discretion, submit one or many, provided that neither party is denied the opportunity to present to the jury any view of the law arising out of the evidence through the medium of pertinent instructions on some issue passed upon. Emry v. Railroad, supra; Meredith v. Coal & Iron Co., 99 N. C., 576; McDonald v. Carson, 94 N. C., 497. In accordance with these rules, this Court has held that in trying a case like that before us, where contributory negligence is pleaded as a defence, it is not error to confine the jury to the single issue whether the injury was caused by the negligence of the defendant, if the Judge, in his charge, explains the evidence relied on tending to establish contributory carelessness on the part of the plaintiff, and instructs the jury to respond in the negative, if they believe that the plaintiff, according to the law as given by the Court, contributed to cause the injury. Scott v. Railroad, 96 N. C., 428 On the other hand, it was held to be error in the trial Judge to refuse to submit an-issue involving the plaintiff’s want of care, and afterwards omit such instruction. Kirie v. Railroad, 97 N. C., 82.
[152]
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Avery, J.
after stating the facts: The first assignment of error rests upon the refusal of the Court below to render judgment in favor of the plaintiff upon the verdict. The plaintiff declared in his complaint that he was walking upon the track of the defendant company in returning from his place of business, “ as he had been in the habit of doing for several years, without objection from the defendant, within the corporate limits of the town of Greensboro, when, owing to gross negligence of the defendant’s servants, he was struck from behind by a locomotive engine, belonging to the defendant, &c., and thrown from the track, and was, thereby, much injured,” &c. To the issue, “ Was the plaintiff injured by the negligence of the defendant, as alleged?” the jury responded “Yes,” while they found, in answer to the second issue, that the plaintiff, by his own negligence, contributed to cause the injury.
[149]*149The most learned and discriminating text-writers concur in the opinion that in actions arising px delicto there is no' degree of negligence that can be described by the word “gross,” alone. But where an injury is due, and can be traced directly to the wilful act of another, he is not absolved from liability by the concurrent negligence of the injured party, as he is not, where, by the exercise of ordinary care, he could, notwithstanding the fault of the injured party, have saved the latter harmless. Shearman & Redfield on Negligence, §§ 36 and 37; Cooley on Torts, p. 674. Hence, we often find, in opinions emanating from this and other Courts, the expression “gross and wanton negligence;” but the former word is never used to describe a degree of carelessness that will excuse the fault of a plaintiff in exposing himself to dánger, except where it is improperly held synonymous with either the word wilful, malicious or fraudulent. Shearman & Redfield on Negligence, §3; Wilds v. Hudson R. R. Co., 24 N. Y., 430; Cattawissa Railroad Co. v. Armstrong, 49 Penn. St., 186; Neal v. Gillett, 23 Conn., 437; Cunningham v. Lyness 22 Wis. 245; Sandford v. Eighth Avenue R. R. Co., 23 N. Y., 343. Wharton (in his work on Negligence, § 64) maintains that, outside of the rule applicable to common carriers (which makes them, according to the circumstances, either insurers or bound to show the care of a prudent man in the conduct of his own business, or liable for gross negligence), there are no recognized degrees of negligence, or negligence that can be described by the words “ slight” or “gross.” Calbreth v. Philadelphia, &c., R. R. Co.; 3 Houston, 392; Wharton on Negligence, §500. In Steamboat “New World” v. King, 16 Howard, 474, Justice Curtis, for the Court, goes much further when he says, speaking of actions arising out of contract, as well as tort: “If the law furnishes no definition of the terms gross negligence or ordinary negligence, which can be applied in practice, but leaves it to the jury to determine in each case what the duty [150]*150was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuccessful attempts to define that duty had better be abandoned.”
If the plaintiff had alleged that the defendant company, or its servants, had wilfully, wantonly, purposely or maliciously run an engine against and injured him, a very different question would have been presented. In Manly v. The W. & W. R. R. Co., 74 N. C., 655, this Court said: “When the injury arises neither from malice, design, nor wanton and gross neglect, hut simply the neglect of ordinary care, and the parties are mutually in default, the negligence of both being the immediate and proximate cause of the injury, a recovery is denied, upon the ground that the injured party must be taken to have brought the injury upon himself. That case was subsequently cited with approval as to the first point in Rigler v. The Railroad Co., 94 N. C., 610, and in Walker v. Town of Reidsville, 96 N. C., 382. See also The Evansville, &c., Railroad Co. v. Lowdermilk, 15 Ind., 120; The Lafayette, &c., Railroad Co. v. Adams, 26 Ind., 76; 2 Woods’ R. L., 319.
We think, therefore, that as the plaintiff did not declare that the engineer or fireman inflicted the injury wilfully, wantonly, or through malice, the word “gross” must be treated as a mere expletive, and the use of it, as characterizing the negligence alleged, makes no material difference in the meaning of the complaint; and the finding that the plaintiff was injured, “ as alleged,” must be treated as an affirmative response to an issue involving only the question, whether the defendant failed to exercise ordinary care in the management of the engine, and thereby injured the plaintiff.
As the jury found, in answering the second issue, that the plaintiff, by his concurrent negligence, contributed to cause the injury, the judgment rendered must stand, unless there was error in misdirecting the jury. Manly v. Railroad, [151]*151supra; Smith v. Railroad, 99 N. C., 241; Troy v. Railroad, 99 N. C., 298; Chambers v. Railroad, 91 N. C., 471; Turrentine v. Railroad, 92 N. C., 638; Rigler v. Railroad, supra.
In reference to framing issues lor the consideration of the jury, this Court has, by repeated adjudications, determined—
1. That only issues of fact raised by the pleadings must be submitted to the jury. Wright v. Cain, 93 N. C., 296; Carpenter v. Tucker, 98 N. C., 316; Emry v. Railroad, 102 N. C., 209.
2. The verdict, whether upon one or many issues, must establish facts sufficient to enable the Court to proceed to judgment. Emry v. Railroad, supra.
3. Of the issues raised by the pleadings, the Judge who tries the case may, in his discretion, submit one or many, provided that neither party is denied the opportunity to present to the jury any view of the law arising out of the evidence through the medium of pertinent instructions on some issue passed upon. Emry v. Railroad, supra; Meredith v. Coal & Iron Co., 99 N. C., 576; McDonald v. Carson, 94 N. C., 497. In accordance with these rules, this Court has held that in trying a case like that before us, where contributory negligence is pleaded as a defence, it is not error to confine the jury to the single issue whether the injury was caused by the negligence of the defendant, if the Judge, in his charge, explains the evidence relied on tending to establish contributory carelessness on the part of the plaintiff, and instructs the jury to respond in the negative, if they believe that the plaintiff, according to the law as given by the Court, contributed to cause the injury. Scott v. Railroad, 96 N. C., 428 On the other hand, it was held to be error in the trial Judge to refuse to submit an-issue involving the plaintiff’s want of care, and afterwards omit such instruction. Kirie v. Railroad, 97 N. C., 82.
[152]*152In the present case it would not have been erroneous to ■confine the jury to the single issue first considered by them, instead of framing two, as we do not think that chapter 33, Laws of 1887, can be construed to make a new issue necessary, because a specific averment was required to make a defence available. This defence, like that of estoppel, may be covered by instruction and considered as bearing on a more comprehensive issue, such as one involving title. Meredith v. Coal & Iron Co., 99 N. C., 576; Railroad Co. v. McCaskill, 94 N. C., 746 But the jury could doubtless have been made to understand the te-timony and the law applicable to it much more clearly, and the labor of the .Judge would have been made lighter in this, as it would in many other such cases, if the jury had been allowed to pass separately, not only upon the question of plaintiff’s, as well as the defendant’s, negligence, but also upon a third question raised by the pleadings discussed by (ounsel on appeal and suggested by the instructions asked for, whether, notwithstanding the plaintiff’s carelessness, the defendant, by the ■exercise of ordinary care, could have prevented the injury.
It was admitted on the trial that the plaintiff was not a trespasser, and the Judge subsequently told the jury that he was not. In the fourth paragraph of the instructions given, as in the entire charge, the Court proceeded upon the assumption that the defendant must exercise ordinary care. It was not erroneous to substitute said paragraph for the first instruction asked, nor to refuse to give that numbered four, offered by plaintiff.
If it was error to refuse to tell the jury that a railroad company is required to exercise more than the usual amount ■of care because of the greater peril to persons passing, in running its trains in populous towns, it was cured by the response to the first issue, and for the same reason it is now unnecessary'- to decide whether the law was correctly stated [153]*153in the instructions numbered one and six, given by the Court
When a person is about to cross the track of a railroad, •even at a regular crossing, it is his duty to examine and see that no train is approaching before venturing upon it, and he is negligent when he can, by looking along the track, see a moving train, which, in hi® attempt to blindly pass across the road, injures him. Bullock v. Railroad, decided at this term; 2 Wood’s R. L., §333. Even where it is conceded that one is not a trespasser, as in our case, in using the track as a footway from a foundry to his house, it behooves him to be still more watchful. The license to use does not carry with it the right to obstruct the road and impede the passage •of trains. A railroad company has the right to the use of its track, and its servants are justified in assuming that a human being who has the use of all of his senses will step ■off the track before a train reaches him. Wharton on Negligence, § 389a; Parker v. Railrood, 86 N. C., 221; 2 Wood’s R. L., § 320.
The plaintiff ivas known to the fireman, and, presumably known to have .ordinary intelligence and to be able to hear an approaching train. The plaintiff could not recover if the engineer and fireman, without any actual knowledge of, or acquaintance with him, had acted as thej7 did on the assumption that he would get out of the way. There was no error, therefore, in giving the instructions numbered 3, 5, 7, 8 or 9.
The plaintiff “would not swear” that the bell w'as not rung, while the engineer and fireman both testified that it was rung. There was no error, however, in the instruction predicated upon the supposition that they failed to ring it. According to the plaintiff’s own testimony, he stood upon the track, with his back towards the engine, and did not see it till after he was stricken by it. lie was, therefore, in any aspect of the case, negligent, and the jury would not have [154]*154been warranted in finding that the defendant could have prevented the injury by using ordinary care, because it was not even negligence unless it grew out of violating a town ordinance, when it was apparent that the plaintiff was awake and in full possession of all his senses, to run the engine at the rate of five miles an hour. If it was running at five miles an hour land the only testimony is that it was running four or five), it is manifest that a reduction of the speed to one mile less an hour would not have prevented the injury by enabling the plaintiff to see with his face turned in the opposite direction. But all this might possibly have been more clearly presented if there had been a third issue, and his Honor.had said there was no testimon)7 to support an affirmative finding on it. There is no error, and the judgment is affirmed.
Affirmed.