Lloyd v. Albemarle & Raleigh R. R.
24 S.E. 805
N.C.
1896
Check Treatment
Avery, J.:

The plaintiff’s intestate was killed in the night by an engine running with tender in front at a speed of about 25 miles an hour and carrying a train of cars. He was on the end of a trestle when stricken. The only light used on the tender was a small hand-lantern, which was held by a man placed on the tender for that purpose. This presents the question so fully discussed in Pickett v. Railroad, 117 N. C., 616, and cases that have followed at this Term. Notwithstanding the negligence of t.he plaintiff’s intestate in exposing himself to danger, could the defendant, by subsequently avoiding some careless act or negligent omission of duty, have prevented the collision with its serious consequences ? The engine could not have *1012 been turned around without the use of a turn-table, and under the circumstances it is not probable that, by keeping the most vigilant outlook, with the small lantern on the tender, the defendant could have seen the intestate in time to stop the train before it came in contact witli him —if we suppose that he was lying prostrate upon the track and apparently helpless. The court carefully instructed the jury that, if the engineer or watchman actually saw the intestate walking upon the track, apparently in possession of all his powers and faculties, either was warranted in acting ou the assumption that he would step off before the train reached him, unless he was seen upon a trestle with all of the peril incident to such a situation. Cl ark v. Railroad, 109 N. C., 430. We may assume that, acting upon the instruction given, the jury concluded that, by the exercise of proper care, the defendant’s servants might have seen the intestate -in time to prevent the collision, and that, if seen, he would have appeared to them to be prone upon the track or in peril on the trestle. The point involved may be discussed upon the supposition that the jury did not believe, from the testimony, that the deceased was walking upon the track beyond the trestle when he was seen, or could by a proper outlook have been seen. Rut it was negligence on the part of the defendant to run its engine after night, rear in front, without such a light, for two reasons. First, because by its aid the intestate might possibly have been seen in time to stop the train and avert the accident; and, secondly, because every person who used the track as a footway under the implied license of the defendant, had reasonable ground to expect that such care would be exercised and to feel secure in acting upon that supposition. Rut a witness was introduced who testified that the engineer, with the aid of a head-light, could not, under any circumstances, have seen a *1013 person on the track in his front in time to have stopped the train before coming in collision with him. This was an opinion which the jar)- were not obliged to accept as conclusive. How far the engineer ought to have been able to see in front by means of a good head-light is a question (like determining within what distance a train can be stopped under given circumstances) the solution of which depends upon the exercise of good common sense and the use of knowledge acquired by observation and experience. Deans v. Railroad, 107 N. C., 686, and authorities there cited. Both inquiries were involved in passing upon the issues, and the jury were at liberty to take notice of such matters of general knowledge as are involved in the determination of the question whether a head-light in front would have enabled the engineer to see the injured person in time, by the use of the appliances at his command, to have prevented the accident. If the jury found that a head-light would have enabled the defendant, by due diligence on the part of its servant, to have seen the intestate in time to have stopped the train before reaching him, then the failure to provide one and have it at the front was a continuing negligent omission of duty, the performance of which would have given the defendant the last clear chance to prevent the injury, and therefore have made its negligence the proximate cause of it. Pickett v. Railroad, supra. The omission of duty consisted in running and continuing to run the train without proper light in front. After the intestate went upon the track, and possibly fell asleep there, the defendant’s servants, seeing it was dark, might have stopped the train upon the track and waited till morning before moving on towards Tarboro. A still safer course would have been to have run back to a turn-table arid placed the head-light in front before starting. It is idle to oifer witnesses to *1014 conclude either courts or juries from inquiring whether a head-light helps an engineer to see or so blinds him as totally to prevent his seeing. If there were any foundation for the defendant’s contention on this point, it might be questionable whether the warning to persons in the front would not be given at too great a cost, if enabling them to see rendered it impossible to avert injury by keeping an outlook from the engine. In refusing to desist from running in such a manner after night, the defendant’s servants voluntarily incurred such risk every moment as the jury found due to the failure to move with the headlight in front. This case is easily distinguishable from Styles v. Railroad, decided at this Term. There the judge, in effect, told the jury that the failure to remove earth, which had been allowed negligently to accumulate before the plaintiff attempted to escape danger from a passing train by going upon it,was the proximate cause of the injury. The negligence in the case at bar consisted in running without a head-light, if by its use the train might have been stopped after the injured party exposed himself. The leaving of the earth unmoved was a fact accomplished before the plaintiff, Styles, attempted to take refuge upo., it. It could no.tliave been taken away then in time to avert the injury. In the case at bar it was a question for the jury whether, after the plaintiff’s intestate had exposed himself to danger, the defendant’s servants might, by the use of ahead-light, have seen himin time to have stopped the engine aud averted the accident, and the court properly left the jury to determine it. It is now settled law in this State (Pickett v. Railroad, supra) that, notwithstanding the fact that a person who is lying insensible upon a railway track is drunk, his negligence is not deemed concurrent, w ere the company’s servants, by the exercise of ordinary care, could have seen himin time to have prevented the injury by theproper *1015 use of the appliances at their command. The fact that the court below adhered to this view of the law before Smith v. Railroad, 114 N. C., 728, had been overruled cannot be assigned as error, now that the later ruling of the Court sustains theposition of the trial judge. The charge is long, but a careful view of it discloses no such inconsistency as was calculated to mislead the jury. The inference, which must be drawn from the finding in the light of the instruction given, is that the jury believed that with a head-light the engineer could, by due diligence, have discovered that the plaint-iff’s intestate was lying helpless upon the track in time to have stopped the train before coming in contact with him. For the reasons given, the judgment is affirmed.

Affirmed.