Russell v. Carolina Central R. R.
24 S.E. 512
N.C.
1896
Check Treatment
Avery, J.:

It is thе duty of an engineer in charge of a moving train to give some signal of its approach to the crossing of a public highway over a railway track or to a crossing which the public have been habitually permitted to use ; and where he fails to do so, the railway company is deemed negligent and answerable for any injury due to such omission of duty. Hinkle v. Railroad, 109 N. C., 472; Randall v. Railroad, 104 N. C., 410; Gilmore v. Railroad, 115 N. C., 657.

On the other hand it is ordinarily the duty of a person, who is approaching a crossing of a railway track, though not at the time fixed by the schedule for the passing of any tram, to make diligent use of his senses in order to discover whether there is reason to apprehend danger of a collisiоn, and the failure to do this usually constitutes contributory negligence; and, where the injury might have been averted by taking such precaution, the plaintiff cannot recover. But where a plaintiff does listen and look and is induced to go upon the track because of the failure of the railroad company to give a signal at the usual place in approaching a crossing, the ensuing injury, in case of a collision, is attributed to the omission of the company to warn such рerson of danger, and not to his *1109 carelessness. Hinkle v. Railroad, supra. And even where the plaintiff exposes himself to danger, if he is induced to incur the risk because of the failure to sound the whistle or ring thе bell at the usual place, the omission to listen an'd look is deemed excusable or not culpable, because he is misled by the conduct of the cоmpany. Alexander v. Railroad, 112 N. C., 720, 734. A person is careless when he neglects to provide, against danger that he has reasonable ground to ‍‌​​​‌​​‌‌‌‌​‌‌​‌‌​​​‌‌‌​‌​​​‌‌​‌​‌​‌​​​​‌​​‌​​‌​‍apprehend, or against deletеrious consequences that are the natural or probable result of his act. Tillett v. Railroad, decided at this Term.

A person who drives up to a crossing in a town or city where it is the custom to close the gates, so as to prevent the passage of vehicles when trains are appreaching and to open them when there is no danger, is nоt negligent if he drive through such gate when open without stopping to look or listen. The same rule applies where the company is accustomed to kеep a sentinel on post to give warning of danger, and a person is induced to drive upon the track because the watchman is not on duty. The plaintiff had a right to expect that the company would not omit to give the usual alarm, and was not culpable for acting upon that supposition. Hinkle v. Railroad, supra.

The three issues arе not in the form suggested and declared, in Hathan v. Railroad, decided at this Term, to be ordinarily best. But this is not the ordinary case of negligence on the part of a defеndant intervening as an operative cause of injury after the carelessness of a plaintiff.

The question whether the plaintiff had been thrown off her-guard by the omission to give the signal, was preliminary to, and very distinct from, the inquiry whether the ‍‌​​​‌​​‌‌‌‌​‌‌​‌‌​​​‌‌‌​‌​​​‌‌​‌​‌​‌​​​​‌​​‌​​‌​‍engineer might, by reasonable care, have discovered that she was in danger in time to have averted the accident notwithstanding her previous carelessness. Here, if the *1110 jury believed that the plaintiff was induced to expose herself by the failure to give the alarm, it was their duty to find, in answer to the first issue, that the injury was due to the defendant’s negligence, and, in response to the the second issue, that she was not сulpable for exposing herself to danger. The question whether, under any given circumstances, it would have been a prudent precaution to stop as wеll as listen and loot in order to acquire more accurate information as to the peril of going upon the track, is a mixed one, and it is the peculiаr province of the jury to pass upon it. In Gilmore v. Railroad, supra, the Court held that it was for the jury, in view of all the testimony as to the surrounding circumstances, to say whether it was imprudent for the plaintiff to venture upon the track with' his team. This ruling, it is contended, is in conflict with the principle laid down in Emry v. Railroad, 109 N.C., 589, and it must be admitted that this is true. If the rule of the prudent man is not to be given аs a guide to the jury, then, where a case is submitted to them because the evidence is conflicting or for the reason that more than one inference can be drawn, it follows as an inevitable conclusion that the Court must anticipate every hypothetical phase which might arise out of the contradictory testimony and all of the varying deductions which might be drawn, and tell the jury beforehand whether, in -any aspect presented by a possible finding of fact, the conduct of a party charged with negligence would come up to, or fall short of, the legal standard of the ideal prudent man. In every instance where the trial judge fаils to work out and present all possible combinations of fact, or all inferences fairly dedueible from the evidence, the jury must be left, despite the iron-сlad rule laid down in the leading opinion in Emry's case, to determine whether the facts ‍‌​​​‌​​‌‌‌‌​‌‌​‌‌​​​‌‌‌​‌​​​‌‌​‌​‌​‌​​​​‌​​‌​​‌​‍as found by them were character- *1111 istie of a prudent or imprudent man. But Gilmore’s case was one where more than a single inference was deducible, and it was held to be the office of the jury not only to make the deductions but to apply the rule of the prudent man to thеm after they were made. This rnling is utterly irreconcilable with that in Emry’s case. But while in Tillett v. Railroad, decided at this Term, Emry’s case was conceded to be authority upon this point, the later case of Hinshaw v. Railroad can be construed in no other way than as overruling Emry’s case.

The substance af the rule, as stated in Emry’s case, was that when the facts were controverted, or the inferences to be drawn from them were doubtful, the jury must find the facts or draw the inferences, and “the court must instruct thеm as to the law applicable to the same.” The court cannot, instruct upon a state of facts not yet found, and unless the judge, of his own motion, or with the aid of counsel, can anticipate every conceivable aspect of the testimony upon which a verdict might be based, there must be left some hyрothetical phase of it, which, if adopted, would leave the jury with no better or other guide than that furnished by the standard of the ideal prudent man. In overruling. Emry’s case this Court substitutes, necessarily, the rule prevailing in England and adopted by the Supreme ‍‌​​​‌​​‌‌‌‌​‌‌​‌‌​​​‌‌‌​‌​​​‌‌​‌​‌​‌​​​​‌​​‌​​‌​‍Court of the United States, and the courts of almost all of the states, for that therein laid down.

The relative rights and powers of the court and jury in the trial of actions raising issues as to negligence and contributory negligence, may be defined as follows :

1. Where the facts are undisputed and but a single inference can be drawn from them, it is the exclusive duty of the court to determine whether an injury has been caused by the negligence of one or the concurrent negligence of both of the parties.

*1112 2. Where the testimony is conflicting upon any material point оr more than one inference may be drawn from it, it is the province of the jury to And the facts or make the deductions.

3. It is the duty of the Judge to tell the jury, at the request of counsel, whether in any given phase of contradictory evidence or in case an inference ‍‌​​​‌​​‌‌‌‌​‌‌​‌‌​​​‌‌‌​‌​​​‌‌​‌​‌​‌​​​​‌​​‌​​‌​‍fairly deducible from the testimony, or any aspect of it should be drawn by them, either of the parties would be deemed in law culpable.

4. Where the testimony is conflicting or fair minds may deduce more than one cоnclusion from it, it is the province of the jury, after hearingsuch instructions as may be submitted by the court for their guidance, to determine whether either of the parties charged with negligent omission to exercise reasonable care or to use such diligence as a prudent man in the conduct of his own affairs would have exercised under all of the surrounding circumstances.

5. It is not the duty of thenisiprius Judge to instruct, without special request, upon every possible aspect of the evidence or as tо every conceivable-deduction of fact which may be drawn from it. Morgan v. Lewis, 95 N. C., 296; Brown v Calloway, 90 N. C., 118.

While we see no error in the instruction given in relation to the third issue, it is not material to discuss it. The jury under the instruction given must have concluded that the defendant negligently omitted to give the signal and that the plaintiff was not culpable, and hence have deemed it unnecessary to lespond to the third issue. The judgment is affirmed.

Affirmed.