This аppeal is from verdict and judgment for $5,000.00 actual damages for wrongful death. Sections 411, 412, Code of 1942. The twenty-nine year old deceased was an unmarried son of a widowed mother with younger children -in whose support he aided by his earnings as a truck driver. He left his mother’s home late on the Sunday afternoon of March 7, 1948, and was struck and killed by a fast passenger train at a little after eleven o’clock that night. The accident occurred in a populated and partly industrial area just south of the city of Greenville. There was evidence that he was in the company of a woman and another, unidentified, man, who with two others, who testified for plaintiff, purchased and *541 all drank whiskey on or about the railroad tracks where there were paths in frequent use by the public. Further statement of the facts may be shortened by quotation from the reply brief of appellants, as follows: “Appellants agree that in so far as the facts concern the relationship of the plaintiff’s intestate to the defendants on the question of licensee or trespasser, there is no dispute аs to these facts. The uncontradicted evidence showed that there were well defined paths leading down to and along defendant’s tracks, and that for more than twenty years the public at large had been accustomed to use these paths for pedestrian purposes, with the acquiescence of the defendants. Therefore there was no dispute as to the fact that persons so using the paths were licensees. The uncontradicted evidence also showed that plaintiff’s intestate, being overcome by liquor was in a helpless condition on defendants’, track. It was likewise shown by the uncontradicted evidence that plaintiff’s intestate was sitting in a stooped over position on a cross tie of defendants’ track. There was no- dispute about the facts but there was plenty of dispute about the law.”
The quoted concessions are of importance because motions for nonsuit and directed verdict were made by appellants upon the contention that under the evidence the deceased was a trespasser upon the tracks, issue concerning which was submitted to the jury by the trial court after refusal of the motions. Further important significance will be noted by reference to the discussion of appellants’ exception XV, toward the end of this opinion. It plainly appears that the verdict followed from the conclusion of the jury that deceased was a licensee rather than a trespasser, and this after additional instructions which were requested by them. The present pertinent admission by appellants is entirely proper in view of the relеvant evidence, which on that account need not be stated.
The complaint was usual in form in such cases and alleged negligence, recklessness and wantonness in the rate of speed *542 of the train, in failure to give adequate warnings of approach, failure to keep proper lookout to discover the deceased helpless upon the track and failure of warning after discovery of him or after he could have been discovered by the trainmen. The answer was. also usual in form with denials and plea of contributory negligence, recklessness and wantonness on the part of the deceased which was particularized in much detail, including failure to use his senses to ascertain the approaching train, in becoming drunk upon the track at night, and that he was a trespasser there.
The locomotive' was a modern Diesel type with full view of the track ahead (as from an automobile) and was equipped with an efficient headlight and also a Mars light which revolves or oscillates so as to cast its beams to right and left of the train’s approach which also occasionally coincide with the beams of the headlight. No warning signals were given after passing a public grade crossing 1025 feet straightaway and upgrade to the place of the accident. In all, the track was straight for over 3600 feet. The engineer and fireman testified that they were keeping a lookout and about 600 or 700 feet away first saw an object on the track which they took to be paper or cardboard. (This is reminiscent of Mason v. Southern Ry Co., infra, where a child was mistaken for a dog or chicken.) They gave no signals and did not slacken speed. When they determined, apparently simultaneously from their testimony although there seems to have been no communication between them, that there were people on the track, which was at a distance of about 200 feet, the emergency brakes were applied, still no signals given, and the train was stopped after the last of eight cars 80 feet long had passed the scene by two1 or three car lengths. The crewmen testified that the. speed was from 55 to 60 miles per hour. The engineer entered the railway service in the year 1902 and was retired in 1949. He long wore bifocal eyeglasses and appears from the record to have been unable to read from the witness stand a printed sign in the court room. It is impossible for this court to appraise the last stated fact but it *543 may have been of significance to the jury. They viewed the scene of the accident as a part of the evidence. Photographs and a map of it were also introduced. No one estimated in evidence the distance required to stop the train in emergency. The engineer said it could not have been done in the distance after he first saw the deceased and his companion, which is quite indefinite in view of the other evidence. It appears that the fireman had said at the inquest 600 or 700 feet, but at the trial he could not remember that and disclaimed knowledge. Part of his duty .was to aid the engineer in keeping a lookout but it is clear that on this occasion he was of no help.
Reference is made above to the testimony of the engineer and fireman that each, apparently independently but at the same time, first saw on the track what turned, out to be two people at a distance from the latter of about 600 or 700 feet, mistaken then they say for paper or cardboard. But it appears that such estimate was based on the distance from the grade crossing which in fact and by survey in evidence was 1025 feet. The fireman was putting on his coat or jacket and apparently .did nothing and said nothing to the engineer.
There was an applicable rule of the operating company to the effect that .engine crewmen must keep a constant and vigilant lookout for pedestrians or obstructions on the track, and seeing such must immediately reduce the speed and be assured that the track is clear before proceeding, and also give reasonable warning when persons or cattle are on the track in order to avoid running them down. We think it may be fairly held that there was substantial question of fact whether there was violation of this rule. Evidence hereabout was received without objection.
The аlarm signal, or cattle alarm, was described by the company witnesses as a succession of short blasts of the whistle; and the latter was described as loud and easily heard. Who can say that it may not be reasonably concluded that the timely sounding of it would have aroused *544 the deceased and alerted him to his danger? This difficult question was also one of fact for the jury.
The respondent produced witnesses who live in the neighborhood and had seen trains like this travel at night and gave their estimates and opinions as to how far and what objects on the track may be seen by aid of the locomotive headlight and Mars light, which conflicted with similar testimony of the crewmen and made sharp issue thereabout. Regardless, however of this contradiction in the testimony, that of the interested crewmen need not have been accepted by the jury if they did not believe it; they were the judges of the credibility of the witnesses and of the weight of the evidence. Moreover, the nature of the factual feature of the appeal necessitates that the court view the evidencе and reasonable inferences therefrom' most favorably to respondent. As counsel frankly say in effect in the above quotation from the brief, the appeal is concerned more with law than with facts.
The burden of it is the effort of appellants to persuade the court to overrule the following former decisions:
Sentill v. Southern Ry. Co.,
70 S. C. 183,
In somewhat irregular order at this point and therefore parenthetically, the following is quoted from the leading
Mason case, supra,
58 S. C at pages 80, 81,
Appellants’ principal contention with respect to the cited cases follows the reasoning of the dissenting opinion in the
Hayes case,
196 S. C. at pages 398, 399,
*546
The main brief of appellants contains a collection of cases from other jurisdictions which are in conflict with our long established rule. Others similar may be found in the annotations hereinafter cited. This court and others have refused to follow them. It was said by the majority in the
Hayes case, supra,
196 S. C. at page 391,
It is ventured to say that no rule is firmer fixed/in the law of this State than that wliich appellants would overturn. It was evolved early after the operation of railroads began and before formulation of the comparatively modern doctrine of “last clear chance” in negligence cases. However, the facts of our former decisions which are under attack appear to come within that now generally accepted rule. It was fully еxplored and followed in
Seay v. Southern Ry.,
205 S. C. 162,
Extended treatment of the subject of last clear chance occurs in
The editor cites at 171 A. L. R. 398 in support of the doctrine of last clear chance A. L. I. Restatement, Torts, sec. 479. The following is from the Restatement, entitled, “Defendant’s last clear chance:”
*548 A plaintiff who has negligently subjected himself to a risk of harm from the defendant’s subsequent negligence may recover for harm caused thereby if, immediately preceding the harm,
(a) the plaintiff is unable to аvoid it by the exercise of reasonable vigilance and care, and
(b) the defendant
1. knows of the plaintiff’s situation and realizes the helpless peril involved therein; or
2. knows of the plaintiff’s situation and has reason to realize the peril involved therein; or
3. would have discovered the plaintiff’s situation and thus had reason to realize the plaintiff’s helpless peril had he exercised the vigilance which it was his duty to the plaintiff to exercise, and
(c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing ability to avoid harming the plaintiff.
Decisions in conformity with the foregoing hold that one is incapable of care if prostrate from intoxication or other cause, and within the rule if the other factors are present.
*549
Apparently overlooking
Seay v. Southern Ry., supra,
205 S. C. 162,
“However, if it appears to the engineer -that such a person is in a position of danger and does not see the train it may become the duty of the company in certain circumstances and in the exеrcise of due care to make all reasonable efforts to slacken speed or stop the train.
Mack v. South Bound Railroad Company,
52 S. C. 323,
At first blush it may be startling that,one may go upon a railroad track drunk or become so thereon and nevertheless be entitled to care from a train crew when his voluntary intoxication has incapacitated him to care for himself. But one insensible from voluntary drunkenness is after all not immediately substantially different from one unconscious because of innocent accident or illness. In both cases helpless human life is at stake. No doubt this consideration has moved this court and others to consistently hold that intoxication to the extent of helplessrjess interrupts the negligence of the victim so that subsequent negligence of a defendant brings into play the rule of last clear chance; or, in the thought and terminology of the Seay case, converts plaintiff’s prior negligence into the remote, rather than the proximate cause of the injury.
This reexamination of the rule established and applied in our former decisions which appellants challenge leaves us in *551 no doubt of its soundness, under reason and authority. We adherе to it. However, we are mindful of the much faster speeds at which trains now run than when the early cases were decided (properly adverted to in the instructions to the jury in the trial of this case). This is made possible by improvements in trackage and locomotion and is necessitated by the competition of other means of rapid transportation. Doubtless brakes and headlights are also more efficient. These, are matters of fact for consideration of the jury in the light of relevant and competent evidence and under аppropriate instructions by the court. They properly enter into the measurement and testing by the jury of the conduct of the parties by the time-honored rule of average and reasonably prudent care. Ordinarily it is the function of the jury to determine such facts; and for the court only when the evidence is susceptible of but one reasonable inference, whether of due care or negligence.
What has been said by way of statement of the evidence and admissions and review of the applicable law demonstrates, we think, that the trial court did not err in refusing appellants’ motions for nonsuit and directed verdict in their favor, and the exceptions thereabout are overruled. The remaining exceptions relating to the instructions to the jury, which were argued in appellants’ brief, will be considered in the order there observed.
Exception VI relates to the following instruction to jury which was given per respondent’s request at the end of the general charge: “I charge you that the law imposes upon the defendant railroad the duty of keeping a reasonable lookout for obstructions on its track, and if the direct and proximate cause of the death was the negligence of the defendant railroad in failing to keep a reasonable lookout and discover helpless person on its track in time to have prevented injury, it is as much liable in damages as if the proximate cause of the injury, had been its negligence after discovering such person upon its track.” We find no error. *552 The law of it is consonant with our decisions. The specification of error answers itself in view of the forepart of this opinion, as follows: “The error being that said charge is . contrary to the principle of law that the defendants owed no duty to keep a lookout for plaintiff’s intestate if he was a trespasser, and the evidence is susceptible of no other reasonable inference than that plaintiff’s intestate was a trespasser.”
Exception IX complains of error in the following instruction, also given at respondent’s request: “I charge you that ‘A want of ordinary care may be said to contribute proximately to' an injury when it is an active and efficient cause of the injury in any degree, however slight, and not the mere condition or occasion of it. But it is not a proximate cause of the injury when the negligence of the person inflicting it is a.more immediate efficient cause. And so when the negligence of the person inflicting the injury would have discovered the carelessness of the person injured in time to avoid its effect and prevent injuring, him, there is no contributory negligence because the fault of the injured party becomes remote in the chain of causation. In such a case, the want of ordinary care on the part of the injured person is held not a judicial cause; that is, a proximate cause, of his injury, but only a condition of its occurrence.’ ” Appellants’ first criticism is that it is a statement of the law of last clear chance, which however we have seen is of force and was applicable'to respondent’s construction of the facts, which the verdict shows was accepted and found by the jury. It does not state the law of comparativе negligence, which is appellants’ other criticism. This comment is similarly applicable to exception X which was also’ made by appellants upon the now abandoned contention that the deceased may have been a trespasser on the tracks.
.Exception XI was to the refusal of the court to charge in effect that a licensee on a walkway along the railroad track loses his status as such when he sits or lies on the track or walkway and is no longer entitled to *553 lookout on the part of the train сrewmen who need then only not wilfully injure him after discovery upon the track, even if he is helpless. We know of no authority anywhere which upholds such a view. It is manifestly without merit.
Exceptions XII, XIII and XIV'impute error in the refusal by the court to charge in accord with appellants’ several requests which were to the effect that the drunken state of the deceased deprived him of all redress, which is not the law, as we have seen, and the proffered requests were rightly refused.
Exception XV is the last which was argued by appellants. After the jury had deliberated for about four hours they returned and asked to be instructed again as to the difference between a trespasser and a licensee. The court responded and in the course of the additional instructions had this to say: “If, however, the servants of the railroad Company should discover a trespasser upon the track, and should fail to observe due care under the circumstances to avoid running him down, this would be evidence from which a jury might infer that the injury was the result not of mere negligence but of the conscious failure to exercise due care or of willfulness or wantonness.” The specifications of error relate to the reference to willfulness or wantonness, which has become academic in view of the restriction of the verdict to actual damages. Moreover, appellants now concede that the deceased was not a trespasser but a licensee.
Consideration of the instructions as a whole, which is of course always' proper, is convincing that they contained no ■error which was prejudicial to appellants.
Accordingly, all exceptions are overruled and the judgment affirmed.