ClakksoN, J.
The defendant, at the close of plaintiff’s evidence and at the close of all the evidence, made motions in the court below for judgment as in case of nonsuit. O. S., 567. The motions were overruled and in this we can see no error.
It is the well settled rule of practice, and accepted position in this jurisdiction, that, on a motion to nonsuit, the evidence which makes for the plaintiff’s claim and which tends to support her cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, will be taken and considered in its most favorable light for the plaintiff, and she is entitled to the benefits of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.
The evidence, taken in its most favorable light for plaintiff, was to the effect that A. C. Sanders was the owner of the automobile in which plaintiff was riding. He was driving the automobile and plaintiff had no control over the ear or driver. She was an occupant, guest or gratuitous passenger (if she can be so designated) of her husband. Ordinarily, under such circumstances, negligence on the part of the driver of the car cannot be imputed to the occupant or guest. Bagwell v. R. R., 167 N. C., 611; White v. Realty Co., 182 N. C., 536; Williams v. R. R., 187 N. C., 348; Albritton v. Hill, 190 N. C., 429; Earwood v. R. R., 192 N. C., at p. 30; Dickey v. R. R., 796 N. C., 726; Campbell v. R. R., ante, 107.
Of course if the negligence of the driver, A. 0. Sanders, was the sole, only proximate cause of the injury, plaintiff could not recover. Campbell case, supra.
In the present case we cannot say that the negligence of Sanders, if any, was the sole, only proximate cause of the injury. The injury occurred on a dark night, about 7 :00 p.m., in an unlighted place, the driver of the automobile operating at 3 or 4 miles an hour. In approaching the crossing, Sanders, the driver, testified that there were a couple of little frame buildings on the left side the train was approaching, which would obscure the view of the driver, also “very poor lights on the east side (side train was coming). I don’t think any lights on it.” Witness (plaintiff’s husband) further testified: “After passing the corner of the house if there had been any obstruction it was dark and I couldn’t see. ... I seen the train when it was right on me. I was right in front of it then. I didn’t see it before.- I had not heard it. I did not hear the whistle blow nor the bell ring. I said yesterday I [677]*677did not bear it. If I bad beard it I would have stopped. I didn’t bear either tbe bell or tbe whistle.” Madrin v. R. R., 200 N. C., 784.
Tbe case of Herman v. R. R., 197 N. C., 718, cited by defendant, is not applicable. In that case “Tbe evidence discloses that tbe automobile in which plaintiff was riding when it collided with tbe defendant’s locomotive at a highway crossing in tbe village of Eaynham, Eobeson County, was running about 30 to 35 miles an hour; it skidded approximately 90 feet, presumably due to tbe driver’s effort, to stop, before striking tbe rear driving wheel just under tbe fireman’s seat. ‘I saw tbe car hit and rear up like a bucking horse,’ said one of tbe plaintiff’s witnesses. Tbe train was approaching, slowing down for the station stop, at a rate of from 10 to 12 or 15 miles an hour.”
Nor is Eller v. R. R., 200 N. C., 527 applicable. Tbe collision in that case occurred about 8:26 o’clock in tbe morning. At p. 530 it is said: “Tbe evidence of plaintiff further showed that when you ‘come in line with Park Avenue you can see up tbe railroad several hundred yards.’ This distance was estimated at 300 to 400 yards, and there was no evidence to the contrary.”
The evidence in tbe present case was to tbe effect that defendant ran its fast Florida train 25, 35 to 40 miles an hour through the town of Wilson (with a population of about 15,000 people), over a grade crossing, Green Street, on a dark night, gave no signal of its approach and bad no gongs, safety gates, flagman, or watchman, at tbe crossing. At that time of tbe year it was in evidence that 350 to 400 automobiles crossed tbe railroad at Green Street each day. Tbe traffic at tbe Green Street crossing was pretty heavy, especially at tbe time of tbe evening that tbe injury occurred. Tbe evidence as to tbe heavy traffic was permissible as some evidence to be considered by tbe jury; in fact, defendant made no objection to this evidence.
In Moseley v. R. R., 197 N. C., at p. 637, tbe following charge in tbe court below was approved: “Before a jury will be warranted in saying, in tbe absence of any statutory direction to that effect, that a railroad company should keep a flagman or watchman at a crossing, it must first be shown that such crossing is more than ordinarily hazardous, as for instance, that it is in a thickly populated portion of a town or city, or that tbe view of tbe track is obstructed either by tbe company itself or by other objects proper in themselves. Tbe frequency with which trains are passing, and tbe amount of travel, or noise, are also material circumstances in considering tbe question of danger.” Cummings v. Penn. R. R. Co., 71 A. L. R., 1156.
Tbe ordinance of tbe town of Wilson prohibited a railroad or engineer from running its train through tbe town over 10 miles an hour, and it was incumbent on the engineer to ring tbe bell while so doing.
[678]*678In Hendrix v. R. R., 198 N. C., at p. 144, is tbe following: “It is well settled in tbis jurisdiction that the violation of a town or city ordinance, or State statute, is negligence per se, but the violation must be the proximate cause of the injury. Ordinarily this is a question for the jury if there is any evidence, but, if there is no evidence that the violation of the ordinance or statute is the proximate cause of the injury, this is for the court to determine.”
In Collett v. R. R., 198 N. C., at p. 762, we find: “An engineer in control of a moving train is charged with the duty of giving some signal of its approach to a public crossing; if he fails to perform this duty the railway company is deemed to be negligent; and if a proximate result of such negligence injury is inflicted the company is liable in damages. Russell v. R. R., 118 N. C., 1098; Perry v. R. R., 180 N. C., 290; Moseley v. R. R., 197 N. C., 628.”
In Kimbrough v. Hines, 180 N. C., at p. 280, the Court quotes from cases as follows: “It is also established by the weight of authority that it is not always imperative on a traveler to come to a complete stop before entering on a railroad crossing; but ‘whether he must stop, in addition to looking and listening, depends upon the facts and circumstances of each particular case, and so is usually a question for the jury!’ . . . Persons approaching a railroad crossing are not required, as a matter of law, to stop before attempting to cross, but his omission to do so is a fact for the consideration of the jury.”
This Court approved the following language in the case of Finch v. R. R., 195 N. C., at p.
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ClakksoN, J.
The defendant, at the close of plaintiff’s evidence and at the close of all the evidence, made motions in the court below for judgment as in case of nonsuit. O. S., 567. The motions were overruled and in this we can see no error.
It is the well settled rule of practice, and accepted position in this jurisdiction, that, on a motion to nonsuit, the evidence which makes for the plaintiff’s claim and which tends to support her cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, will be taken and considered in its most favorable light for the plaintiff, and she is entitled to the benefits of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.
The evidence, taken in its most favorable light for plaintiff, was to the effect that A. C. Sanders was the owner of the automobile in which plaintiff was riding. He was driving the automobile and plaintiff had no control over the ear or driver. She was an occupant, guest or gratuitous passenger (if she can be so designated) of her husband. Ordinarily, under such circumstances, negligence on the part of the driver of the car cannot be imputed to the occupant or guest. Bagwell v. R. R., 167 N. C., 611; White v. Realty Co., 182 N. C., 536; Williams v. R. R., 187 N. C., 348; Albritton v. Hill, 190 N. C., 429; Earwood v. R. R., 192 N. C., at p. 30; Dickey v. R. R., 796 N. C., 726; Campbell v. R. R., ante, 107.
Of course if the negligence of the driver, A. 0. Sanders, was the sole, only proximate cause of the injury, plaintiff could not recover. Campbell case, supra.
In the present case we cannot say that the negligence of Sanders, if any, was the sole, only proximate cause of the injury. The injury occurred on a dark night, about 7 :00 p.m., in an unlighted place, the driver of the automobile operating at 3 or 4 miles an hour. In approaching the crossing, Sanders, the driver, testified that there were a couple of little frame buildings on the left side the train was approaching, which would obscure the view of the driver, also “very poor lights on the east side (side train was coming). I don’t think any lights on it.” Witness (plaintiff’s husband) further testified: “After passing the corner of the house if there had been any obstruction it was dark and I couldn’t see. ... I seen the train when it was right on me. I was right in front of it then. I didn’t see it before.- I had not heard it. I did not hear the whistle blow nor the bell ring. I said yesterday I [677]*677did not bear it. If I bad beard it I would have stopped. I didn’t bear either tbe bell or tbe whistle.” Madrin v. R. R., 200 N. C., 784.
Tbe case of Herman v. R. R., 197 N. C., 718, cited by defendant, is not applicable. In that case “Tbe evidence discloses that tbe automobile in which plaintiff was riding when it collided with tbe defendant’s locomotive at a highway crossing in tbe village of Eaynham, Eobeson County, was running about 30 to 35 miles an hour; it skidded approximately 90 feet, presumably due to tbe driver’s effort, to stop, before striking tbe rear driving wheel just under tbe fireman’s seat. ‘I saw tbe car hit and rear up like a bucking horse,’ said one of tbe plaintiff’s witnesses. Tbe train was approaching, slowing down for the station stop, at a rate of from 10 to 12 or 15 miles an hour.”
Nor is Eller v. R. R., 200 N. C., 527 applicable. Tbe collision in that case occurred about 8:26 o’clock in tbe morning. At p. 530 it is said: “Tbe evidence of plaintiff further showed that when you ‘come in line with Park Avenue you can see up tbe railroad several hundred yards.’ This distance was estimated at 300 to 400 yards, and there was no evidence to the contrary.”
The evidence in tbe present case was to tbe effect that defendant ran its fast Florida train 25, 35 to 40 miles an hour through the town of Wilson (with a population of about 15,000 people), over a grade crossing, Green Street, on a dark night, gave no signal of its approach and bad no gongs, safety gates, flagman, or watchman, at tbe crossing. At that time of tbe year it was in evidence that 350 to 400 automobiles crossed tbe railroad at Green Street each day. Tbe traffic at tbe Green Street crossing was pretty heavy, especially at tbe time of tbe evening that tbe injury occurred. Tbe evidence as to tbe heavy traffic was permissible as some evidence to be considered by tbe jury; in fact, defendant made no objection to this evidence.
In Moseley v. R. R., 197 N. C., at p. 637, tbe following charge in tbe court below was approved: “Before a jury will be warranted in saying, in tbe absence of any statutory direction to that effect, that a railroad company should keep a flagman or watchman at a crossing, it must first be shown that such crossing is more than ordinarily hazardous, as for instance, that it is in a thickly populated portion of a town or city, or that tbe view of tbe track is obstructed either by tbe company itself or by other objects proper in themselves. Tbe frequency with which trains are passing, and tbe amount of travel, or noise, are also material circumstances in considering tbe question of danger.” Cummings v. Penn. R. R. Co., 71 A. L. R., 1156.
Tbe ordinance of tbe town of Wilson prohibited a railroad or engineer from running its train through tbe town over 10 miles an hour, and it was incumbent on the engineer to ring tbe bell while so doing.
[678]*678In Hendrix v. R. R., 198 N. C., at p. 144, is tbe following: “It is well settled in tbis jurisdiction that the violation of a town or city ordinance, or State statute, is negligence per se, but the violation must be the proximate cause of the injury. Ordinarily this is a question for the jury if there is any evidence, but, if there is no evidence that the violation of the ordinance or statute is the proximate cause of the injury, this is for the court to determine.”
In Collett v. R. R., 198 N. C., at p. 762, we find: “An engineer in control of a moving train is charged with the duty of giving some signal of its approach to a public crossing; if he fails to perform this duty the railway company is deemed to be negligent; and if a proximate result of such negligence injury is inflicted the company is liable in damages. Russell v. R. R., 118 N. C., 1098; Perry v. R. R., 180 N. C., 290; Moseley v. R. R., 197 N. C., 628.”
In Kimbrough v. Hines, 180 N. C., at p. 280, the Court quotes from cases as follows: “It is also established by the weight of authority that it is not always imperative on a traveler to come to a complete stop before entering on a railroad crossing; but ‘whether he must stop, in addition to looking and listening, depends upon the facts and circumstances of each particular case, and so is usually a question for the jury!’ . . . Persons approaching a railroad crossing are not required, as a matter of law, to stop before attempting to cross, but his omission to do so is a fact for the consideration of the jury.”
This Court approved the following language in the case of Finch v. R. R., 195 N. C., at p. 199: “The court, gentlemen, instructs you that it is a rule of law that a person who voluntarily goes on a railroad track at a point where there is an obstructed view of the track, and fails to look or listen for danger, cannot recover for an injury which may have been avoided by looking and listening; but where the view is obstructed or other facts exist which tend to complicate the question of contributory negligence, it becomes one for the jury.” Moore v. R. R., ante, 26.
From the facts and circumstances of this case, the law applicable is stated in Earwood v. R. R., 192 N. C., at p. 30, as follows: “However, in the present case, there was evidence tending to show negligence on the part of the defendant in failing to give reasonable signals as required by law. There was also evidence that the driver of the ear was guilty of negligence. Under this aspect of the case the doctrine of concurrent negligence applies, as stated by Stacy, J., in White v. Realty Co., 182 N. C., 536, as follows: ‘But if any degree, however small, of the causal negligence, or that without which the injury would not have occurred, be attributable to the defendant, then the plaintiff, in the absence of any contributory negligence on his part, would be entitled to [679]*679recover; because the defendant cannot be excused from liability unless the total causal negligence, or proximate cause, be attributable to another or others. When two efficient, proximate causes contribute to an injury, if defendant’s negligent act brought about one of such causes, he is liable.’ Wood v. Public Service Corp., 174 N. C., 697; Hinnant v. Power Co. 187 N. C., 288; Albritton v. Hill, 190 N. C., 429”; Smith v. R. R., 200 N. C., 177.
The court below instructed the jury as follows: “If the jury shall find from the evidence, and by its greater weight, that on 1 February, 1930, at about 7 o’clock at night the defendant’s train was being operated in or through the town of Wilson, in violation of the ordinance, that is, at a greater rate of speed than ten miles per hour, or was being operated in or through the town without ringing the bell of the locomotive — either or both — then the court charges the jury that such act on the part of the defendant was negligence and if the jury shall further find from the evidence and by its greater weight that such violation of the ordinance was the proximate cause or one of the proximate causes of the injury to the plaintiff, it would be the duty of the jury to answer the first issue yes.”
The pertinent part of the ordinance complained of by defendant, is as follows: “And every engineer in charge of any train or locomotive running through the town of Wilson shall ring the bell of such locomotive while the same is being run and operated through said town.”
The defendant contends that the instruction set forth above was reversible error. We cannot so hold.
Defendant cites the case of S. v. R. R., 168 N. C., 103. That was a case construing the present ordinance of Wilson. That case decides that “It will hardly be contended that the town did not have the right to make the engineer solely responsible for the blocking of the crossing, if it saw fit to do so, and we think it is equally clear that the ordinance was intended to penalize the engineer alone for doing, or permitting to be done, the forbidden act. Defendant is not charged with running its train at an excessive rate of speed, and the portion of the ordinance where that is prohibited is the only one in which the words ‘railroad company’ are used. When requiring the ringing of the bell and forbidding the blocking of the crossing, the engineer only is mentioned, it being reasonably supposed by the draftsman of the ordinance and the town board that if the prohibited acts were committed, the engineer would be the one directly responsible for it, and the only one who could well prevent it, and they very wisely and justly restricted the imposition of a penalty for disobedience of the ordinance to him. It may be seriously questioned if the part of the ordinance relating to the speed of [680]*680trains is not also confined to him; but we do not decide this, as it is not before us. The ordinance is too plainly worded for any doubt to be entertained as to the intention that the penal clause should be confined to the engineer.” The ordinance is valid. In the penal enforcement of portions of the ordinance, the engineer who violated it must suffer. The ordinance placed a duty on the railroad company and the engineer, the employee of the railroad, under certain aspects of the ordinance was the person to perform the duty imposed on the master, and if he did not ho must suffer the penalty.
We do not think the charge of the court below on the last clear chance, which defendant complains of, if the evidence is not sufficient to sustain the charge, is prejudicial on this record. See Redmon v. R. R., 195 N. C., 764. We see no prejudicial inconsistencies in the charge and cannot hold that it impinges on C. S., 564. The court below fully and fairly gave the contentions on both sides of the controversy, and the law applicable to the facts. We find
No error.