Avery, J.:
The most important question presented by the appeal is whether the court erred in refusing to instruct the jury that if the plaintiff’s intestate deliberately laid down upon the track and either carelessly or intentionally fell asleep there, the defendant was not liable, unless the engineer actually saw that he was lyiug there in time, by the reasonable use of appliances at his command, to have stopped the train before it reached him. In the head-note to Smith v. Railroad, 114 N. C., 729, it seems that the intelligent reporter deduced from the opinion of the court the principle that while the mere going upon the track of a railroad is not contributory negligence, any injury subsequently inflicted by a collision with a passing train, is deemed to be due to the carelessness of the person who goes upon it, unless it is shown that he looked and listened for its approach. While such an abstract proposition may be fairly drawn from the reasoning upon which the opinion is founded, the new trial was [629]*629in fact awarded because tbe court below refused to instruct tbe jury that'if tbe plaintiff’s intestate was drunk, tbougb be was lying apparently helpless upon tbe track, tbe defendant was not liable unless its engineer actually saw that be was in danger, in time to avert tbe injury by reasonable care.
Tbe learned counsel who argued this case for tbe defendant, without citing Smith’s case in support of bis contention, obviously invoked the aid of the principle there decided, when be rested bis argument upon the proposition that- one who carelessly or purposely falls asleep on a railway track is not only negligent in exposing himself upon first going there, but, that though be afterwards becomes utterly unconscious, there is, in contemplation of law, a continuing carelessness on his part up to the moment of a collision, which is concurrently with the fault of the defendant, a proximate cause of an ensuing injury, or operates to quit the carrier of what would have been culpable carelessness and a causa causans, if the injury bad been inflicted on a horse, a pig, a cow or person rendered insensible in any manner than by drunkenness, or deliberately or carelessly falling asleep. So that we are again called upon to review Smith’s case and to determine whether we will modify the principle there laid down or extend its operation to other cases coming within the reason upon which it is founded.
The language of Judge Cooley, which is cited in Clark v. Railroad, 107 N. C., p. 449, is that “if the original wrong only becomes injurious in consequence of the intervention of the distinct wrongful act or omission by another, the injury will be imputed to the last wrong which was the proximate cause, and not to that which was more remote.” If in the case at bar the plaintiff’s intestate was in fault in lying down upon the track and his care[630]*630lessness culminated in doing so, then it is clear tbat the engineer was in fault in failing to keep a proper lookout if he could by doing so have seen the deceased in time through the reasonable use of the appliances at his command to have'averted the injury, and his carelessness of course intervened after that of plaintiff’s intestate. If he had looked and stopped the train the collision would have been prevented notwithstanding the previous want of care on the part of the boy who was killed. In Herring v. Railroad, 10 Ired., 402, this Court followed what was at the time the generally accepted doctrine that persons, who went upon railroad tracks at places other than public crossings, were trespassers to whom the carrier owed no duty of watchfulness and for whose safety it was in no wise liable unless its engineer actually saw that there was danger of injury from a collision and wilfully refused to use means by which he could have averted it.
In Gunter v. Wicker, 85 N. C., 310, this Court gave its sanction to the principle first distinctly formulated in Davies v. Mann, 10 M. & W. (Ex.) 545, that “Notwithstanding the previous negligence of the plaintiff, if at the time the injury was done it might have been avoided by the exercise of reasonable care and prudence on the part of the defendant, an action will lie for damages.” This doctrine was subsequently approved in Saulter v. Steamship Co., 88 N. C., 123; Turrentine v. Railroad, 92 N. C., 638; Meredith v. Iron Co., 99 N. C., 576; Roberts v. Railroad 88 N. C., 560; Farmer v. Railroad, Ibid, 564; Bullock v. Railroad, 105 N. C., 180; Wilson v. Railroad, 90 N. C., 69 ; Snowden v. Railroad, 95 N. C., 93; Carlton v. Railroad, 104 N. C., 365; Randall v. Railroad, 104 N. C., 108; Bullock v. Railroad, 105 N. C., 180, and it was repeatedly declared in those cases that it was negligence on the part of the engineer of a railway company to fail to [631]*631exercise reasonable care in keeping a lookout not only for stock and obstructions but for apparently helpless or infirm human beings on the track, and that the failure to do so supervening after the’negligence of another, where persons or animals were exposed to danger, would be deemed the proximate cause of any resulting injury.
It was after all of these precedents following Gunter v. Wicker, supra, that the court in Deans v. Railroad, 107 N. C., 686, was confronted with the question whether a rail,way company was liable where by ordinary care its engineer could have stopped its train in time to prevent its running over a man lying asleep upon its track, under the doctrine of Gunter v. Wicker, or whether the accident having occurred at a place other than a public crossing the company could be held answerable, under the rule as stated in Herring v. Railroad, only where it was shown that the engineer actually saw the trespasser and had reasonable ground to comprehend his condition. Upon mature consideration the Court overruled Herring’s case and stated the rule applicable in such cases to be that “if the engineer discover or by reasonable watchfulness may discover a person lying on the track asleep or drunk, or see a human being, who is known by him to be insane or otherwise insensible to danger or unable to avoid it, upon the track in his front, it is his duty to resolve all doubts in favor of the preservation of human life and immediately use every available means, short of imperiling the lives of passengers on his train, to stop it.” This rule was approved in express terms in Meredith v. Railroad, 108 N. C., 616; Hinkle v. Railroad, 109 N. C., 472; Clark v. Railroad, 109 N. C., pp. 444 & 445; Norwood v. Railroad, 111 N. C., 236; Cawfield v. Railroad, 111 N. C. 597.
• In Smith’s case, supra, the same questions weie again presented and this Court was asked to overrule the doc[632]*632trine of Deans v. Railroad, and reinstate Herring v. Railroad, as authority. The Court declined to overrule Deans’ case and others which had followed it, but held that, in so far as the opinions purported to bring within the protection of the rule a person who is lying upon the track in an insensible state brought about by drunkenness, they were entitled only to the weight of dicta.
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Avery, J.:
The most important question presented by the appeal is whether the court erred in refusing to instruct the jury that if the plaintiff’s intestate deliberately laid down upon the track and either carelessly or intentionally fell asleep there, the defendant was not liable, unless the engineer actually saw that he was lyiug there in time, by the reasonable use of appliances at his command, to have stopped the train before it reached him. In the head-note to Smith v. Railroad, 114 N. C., 729, it seems that the intelligent reporter deduced from the opinion of the court the principle that while the mere going upon the track of a railroad is not contributory negligence, any injury subsequently inflicted by a collision with a passing train, is deemed to be due to the carelessness of the person who goes upon it, unless it is shown that he looked and listened for its approach. While such an abstract proposition may be fairly drawn from the reasoning upon which the opinion is founded, the new trial was [629]*629in fact awarded because tbe court below refused to instruct tbe jury that'if tbe plaintiff’s intestate was drunk, tbougb be was lying apparently helpless upon tbe track, tbe defendant was not liable unless its engineer actually saw that be was in danger, in time to avert tbe injury by reasonable care.
Tbe learned counsel who argued this case for tbe defendant, without citing Smith’s case in support of bis contention, obviously invoked the aid of the principle there decided, when be rested bis argument upon the proposition that- one who carelessly or purposely falls asleep on a railway track is not only negligent in exposing himself upon first going there, but, that though be afterwards becomes utterly unconscious, there is, in contemplation of law, a continuing carelessness on his part up to the moment of a collision, which is concurrently with the fault of the defendant, a proximate cause of an ensuing injury, or operates to quit the carrier of what would have been culpable carelessness and a causa causans, if the injury bad been inflicted on a horse, a pig, a cow or person rendered insensible in any manner than by drunkenness, or deliberately or carelessly falling asleep. So that we are again called upon to review Smith’s case and to determine whether we will modify the principle there laid down or extend its operation to other cases coming within the reason upon which it is founded.
The language of Judge Cooley, which is cited in Clark v. Railroad, 107 N. C., p. 449, is that “if the original wrong only becomes injurious in consequence of the intervention of the distinct wrongful act or omission by another, the injury will be imputed to the last wrong which was the proximate cause, and not to that which was more remote.” If in the case at bar the plaintiff’s intestate was in fault in lying down upon the track and his care[630]*630lessness culminated in doing so, then it is clear tbat the engineer was in fault in failing to keep a proper lookout if he could by doing so have seen the deceased in time through the reasonable use of the appliances at his command to have'averted the injury, and his carelessness of course intervened after that of plaintiff’s intestate. If he had looked and stopped the train the collision would have been prevented notwithstanding the previous want of care on the part of the boy who was killed. In Herring v. Railroad, 10 Ired., 402, this Court followed what was at the time the generally accepted doctrine that persons, who went upon railroad tracks at places other than public crossings, were trespassers to whom the carrier owed no duty of watchfulness and for whose safety it was in no wise liable unless its engineer actually saw that there was danger of injury from a collision and wilfully refused to use means by which he could have averted it.
In Gunter v. Wicker, 85 N. C., 310, this Court gave its sanction to the principle first distinctly formulated in Davies v. Mann, 10 M. & W. (Ex.) 545, that “Notwithstanding the previous negligence of the plaintiff, if at the time the injury was done it might have been avoided by the exercise of reasonable care and prudence on the part of the defendant, an action will lie for damages.” This doctrine was subsequently approved in Saulter v. Steamship Co., 88 N. C., 123; Turrentine v. Railroad, 92 N. C., 638; Meredith v. Iron Co., 99 N. C., 576; Roberts v. Railroad 88 N. C., 560; Farmer v. Railroad, Ibid, 564; Bullock v. Railroad, 105 N. C., 180; Wilson v. Railroad, 90 N. C., 69 ; Snowden v. Railroad, 95 N. C., 93; Carlton v. Railroad, 104 N. C., 365; Randall v. Railroad, 104 N. C., 108; Bullock v. Railroad, 105 N. C., 180, and it was repeatedly declared in those cases that it was negligence on the part of the engineer of a railway company to fail to [631]*631exercise reasonable care in keeping a lookout not only for stock and obstructions but for apparently helpless or infirm human beings on the track, and that the failure to do so supervening after the’negligence of another, where persons or animals were exposed to danger, would be deemed the proximate cause of any resulting injury.
It was after all of these precedents following Gunter v. Wicker, supra, that the court in Deans v. Railroad, 107 N. C., 686, was confronted with the question whether a rail,way company was liable where by ordinary care its engineer could have stopped its train in time to prevent its running over a man lying asleep upon its track, under the doctrine of Gunter v. Wicker, or whether the accident having occurred at a place other than a public crossing the company could be held answerable, under the rule as stated in Herring v. Railroad, only where it was shown that the engineer actually saw the trespasser and had reasonable ground to comprehend his condition. Upon mature consideration the Court overruled Herring’s case and stated the rule applicable in such cases to be that “if the engineer discover or by reasonable watchfulness may discover a person lying on the track asleep or drunk, or see a human being, who is known by him to be insane or otherwise insensible to danger or unable to avoid it, upon the track in his front, it is his duty to resolve all doubts in favor of the preservation of human life and immediately use every available means, short of imperiling the lives of passengers on his train, to stop it.” This rule was approved in express terms in Meredith v. Railroad, 108 N. C., 616; Hinkle v. Railroad, 109 N. C., 472; Clark v. Railroad, 109 N. C., pp. 444 & 445; Norwood v. Railroad, 111 N. C., 236; Cawfield v. Railroad, 111 N. C. 597.
• In Smith’s case, supra, the same questions weie again presented and this Court was asked to overrule the doc[632]*632trine of Deans v. Railroad, and reinstate Herring v. Railroad, as authority. The Court declined to overrule Deans’ case and others which had followed it, but held that, in so far as the opinions purported to bring within the protection of the rule a person who is lying upon the track in an insensible state brought about by drunkenness, they were entitled only to the weight of dicta. No member of the Court adopted this particular view but the Chief Justice who delivered the leading opinion. The other members of the Court were either in favor of sustaining without any modification or of overruling in toto the principles as enunicated in Deans’ case. The learned counsel for the defendant now contends that one, who deliberately incurs the risk of lying down upon the track, is no more entitled to the, protection of the law than a drunken person, and that where he is killed his personal representative cannot invoke the benefit of the rule which subserves the purpose of shielding even brutes from the same unnecessary peril. At common law in England the owner of cattle was required to keep them in or restrain them from trespassing on the lands of others. 2 Sherman & Red. Neg., Secs. 418, 626, 627. But in this country the rule has been either modified by statute or in a much larger number of States entirely disregarded because the reason upon which it was founded, under different conditions, had ceased to operate. 2 Shearman & Red., Secs. 419 to 422. The principle deduced from Davies v. Mann, as is said by discriminating law-writers, is that “the party who has the last clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsbile for it.” 2 Sherman & Red., p. 165. Thi- rule has now been adopted in almost all of the Southern and Western States, but has been construed in some of them and by a number of text writers as applying to [633]*633injuries done by moving trains only, where the engineer actually sees an animal or a person. ' But this Court, soon after adopting the rule laid down in Davies v. Mann, (in Gunter v. Wicker, supra) construed it in its application to animals in Wilson v. Railroad, 90 N. C., 69, followed by Snowden’s, Carlton’s, Bullock’s and Randall’s cases, supra, to mean that an engineer was not only negligent in failing’ to avert an injury to animals actually seen butt-hose which might by proper vigilance have been seen by him in time, by the use of the appliances at his command and without peril to the safety of persons on the train, to avert the accident.
It is settled irrevocably in North Carolina that a railway company is answerable in damages for an injury to any valuable domestic animal, due to the failure of the engineer to exercise reasonable care in observing the track in his front and to passengers on a train, when caused by a want of similar vigilance.on the part of the same servant in keeping an outlook for obstructions. The question presented in this case therefore, as in Smith’s case, is whether, by any sort of legal fiction, we can hold a servant faultless for failure to see one who has voluntarily fallen upon the track and yielded to the influence of sleep, or who, overcome with drunkenness, lies prostrate in the way of a train, when éither or both are sandwiched between obstructions; animals, children or persons unconscious from sickness, or known by the engineer to be deaf, whom the law declares it is his duty to see if it is possible for him by the exercise of ordinary care to do so. The opinion of the Court in Smith’s case not only concedes, but adduces much authority to sustain the correctness of the ruling in Deans v. Railroad, and the later opinions approving it, as therein interpreted, but proceeds upon the idea that in so far as any previous opinion had stated [634]*634that a railway company owed the duty of watchfulness to drunken persons lying on its track or became liable for failure to discharge it, unless actually seen by the engineer, they were dicta only. It was true however as to Deans’ and Clark’s cases that there was some evidence tending to show that in the one instance the person who fell asleep on the track was drunk and in the other that the man killed was intoxicated when he went upon the trestle.
To illustrate the operation of the conflicting rules as they now stand: suppose that the engineer is approaching a straight cut, through which he can see for one fourth of a mile or for a sufficient distance to stop his train without breach of his duty to those on it before reaching the cut, and that at the entrance nearest him a sleeping child, ten feet further a cow and ten feet further still a large boulder with a drunken man or one who has deliberately laid down, resting asleep and unconscious upon it are arranged successively. Suppose then that the engineer carelessly fails to look out and see the sleeping child, the cow or the boulder, and by successive collisions, kills the child, the cow and the man on the boulder and the train is wrecked by striking the boulder so that a number of passengers are likewise killed. The result would present a legal paradox under the law as it now stands. The servant who represents the company would render it liable for his omission of the duty of keeping a lookout, for which the company could be mulcted in damages by the personal representatives of the child and of the passengers and by the owner of the cow, and yet, though the engineer could not discharge the duty which never ceased, of watching for the boulder without seeing the drunkard or the sleeping man, the failure to see either is, in contemplation of law, no culpable breach of duty. The learned counsel for the defendant has given, it seems to us, quite as cogent reasons for [635]*635bolding that a railroad company is absolved from duty to one, who wilfully or carelessly exposes himself to peril by sleeping upon a track as to one who falls down in a state of utter unconsciousness superinduced by drinking, and cited equally as strong and numerous authorities in support of his contention. But the reasons and the authority relied upon emanate generally from courts which bold that both persons and animals upon a track are trespassers and entitled to consideration only where actually seen in time to save them. It is not strange that courts, where it is held that railway companies owe no duty to any one who goes on their track and is not seen, should have sought support for their position, where a drunken man happened to be the victim of carelessness, in the theory that he was deemed to be still concurring up to the time of the accident and was less deserving of consideration than a sober trespasser. But it must not be forgotten that in the last analysis, notwithstanding the additional reason assigned, the drunkard, in the States holding to the principle that we have repudiated, is excluded from the right to recover because he is a trespasser, just as his sober neighbor would be barred of the right if he were injured by his side, and when actually seen the same duty of protection arises as to both.
The admitted test rule to which we have adverted, that he who has the last clear chance, notwithstanding the negligence of the adverse party, is considered solely responsible, must be applied in contemplation of the law which prescribes and fixes their relative duties. The law as settled by two lines of authorities here, imposes upon the engineer of a moving train the duty of reasonable care in observing the track and if by reason of his omission to look out for cows, horses and hogs, he fails to see a drunken man or a reckless boy asleep on the track, it can not be [636]*636denied that he is guilty of a dereliction of duty. If he is guilty of a breach of duty we can not controvert the propositions which necessarily follow from the admission that but for such omission or if he had taken advantage of the last clear opportunity to perform a duty imposed by law, the train would have been stopped and a life saved. It can not be denied that, in a number of the States which have adopted the doctrine of Davies v. Mann, it has also been held that both man and beast were trespassers when they went upon a railway track and except at public crossings or in towns it was not-the duty of the engineer to exercise care in looking to his front with a view to the protection of either. Where the law does not impose the duty of watchfulness it follows that the failure to watch is not an omission of duty intervening between the negligence of the plaintiff in exposing himself and the accident, unless he be actually seen in time to avert it. The negligence of the corporation grows out of omission of a legal duty and there can be no omission where there is no duty prescribed. But when this Court declared it the duty of an engineer to exercise reasonable care in looking out for animals on the track, it became equally a duty as to all those classes of persons who, if actually seen by him, would be entitled to demand that he use all the means at his command to avert injury to them.
Where the rale prevails that no liability attaches for a failure of the. engineer to keep a lookout except in towns and at crossings, the same test is applied by the courts. So soon as the duty arises the failure to perform it, if intervening after the negligence of a person in exposing himself to peril, is held to be the last clear opportunity to discharge it, and therefore the proximate cause of the injury, if it could have been averted by the use of the means at his command after the law required him. to have seen it. [637]*637As we bold that the duty on the part of the engineer of watchfulness to protect life' is an ever present one, attending him every where, and extending to the people in the remote country as well as in the towns, it necessarily follows that -the opportunities that grow out of duty performed are co-extensive with the duty prescribed and may arise wherever it exists. We are of opinion that, when by the exercise of ordinary care an engineer can see that a humau being is lying apparently helpless from any cause on the track in front of his engine in time to stop the train by the use of the appliances at his command and without peril to the safety of persons on the train, the company is liable’for any injury resulting from his failure to perform his duty. If it is the settled law of North Carolina (as we have shown) that it is the duty of an engineer on a moving train to maintain a reasonably vigilant outlook along the track in his front, then the failure to do so is an omission of a legal duty. If by the performance of that duty an accident might have been averted, notwithstanding the previous negligence of another, then, under the doctrine of) Davies v. Mann, and Gunter v. Wicker, the breach of duty \ was the proximate cause of -any injury growing out of such accident, and where it is a proximate cause the company is liable to respond in damages. Having adopted the principle that one whose duty it is to see does see, we must follow it to its logical results. The court committed no error of which the defendant could justly complain in stating the general rule which we have been discussing.
Considered in connection with other portions of the charge the statement of the distances, as proved by defendant’s witnesses, was but a fair submission of the view argued by defendant's counsel and affords no ground for exception. Under the general principle laid down in Emry v. Railroad, 102 N. C., 246, and the numerous cases [638]*638which have followed it, it was within the sound discretion of the court to frame the issues, and the defendant must show that the exercise of that discretion operated to his injury if he would assign it as error. But in Scott v. Railroad, 96 N. C., 428, and Denmark v. Railroad, 107 N. C., 107, and other cases, it has been declared that the judge was clothed with discretion to submit one, two or three issues where the controversy hinges upon a controverted allegation of negligence, as he might think best, provided he should give appropriate instructions. Where the first issue (here the second) raises not only the question whether the defendant was negligent but also whether it was the proximate cause, the judge is at liberty lo tell the jury if they should find that the defendant was negligent and its negligence was the proximate cause of the injury, it was immaterial to determine whether or not the plaintiff had been previously negligent.
The question propounded to the witness Wilson was intended to elicit an opinion, which it was the province of the court to decide that he had not qualified himself to give. State v. Hinson, 103 N. C., 374.
The court below was requested, however, in substance, to instruct the jury that the measure of damage for the loss of a human life was the present value of the net income which would be ascertained by deducting the cost of living and expenditures from the gross income', and that the jury could not allow more than the present value of accumulation arising from such net income based upon the expectancy of life. The court, in lieu of the instruction asked, told the jury that the measure of damage was the reasonable expectation of pecuniary benefit from the continued life of the deceased to those who would have been dependent on him, had he continued to live out his natural life; that the expectation of one 17 years old would be [639]*63944 2-10 years and the damage would be the net monied value of intestate’s life to those-dependent upon him, had he continued to live out his appointed time. Though the court stated the abstract proposition, as we find it formulated in the books, in the first clause of that portion of the charge relating to damages, we think that the substitution of the subsequent portion of it for the more specific instruction to which the defendant was entitled and for which he asked was erroneous. The instruction given, viewed without reference to the prayer of the defendant, was objectionable in that it left the question of the date which should be the basis of the final calculation, to say the least, uncertain, if his language was not susceptible of the construction that the net income would be estimated as of the period when those dependent on him would have realized the benefits of his labor had he not c me to an untimely end.
"We are of opinion, therefore, that following as a precedent Tillett v. Railroad, 115 N. C., 662, a new trial •should be granted for the error complained of, only as to the issue to which the erroneous instruction related. The jury found the fact upon full instruction as to the law in connection with other issues, which left the defendant no just reason to complain. But another opportunity must be given to assess the damage in the light of a more explicit statement of the law applicable. A new trial is granted, therefore, solely for the purpose of inquiring as to damages. The case will be remanded to the end that the jury may ascertain what is the present value of intestate’s life.
Partial New Trial.