Snipes v. Camp Manufacturing Co.
152 N.C. 42
N.C.
1910
Check Treatment
Hoke, J.,

after stating the case: The Court is of opinion that on the facts and circumstances as now presented there was a duty imposed upon the defendant’s engineer to give a signal, or some adequate warning, before starting the engine; and that on the ordinary issues in actions of this charactеr, and under various decisions of this Court applicable to the case, if these *45facts and circumstances are accepted by tbe jury, the verdict as to defendant’s negligence should be resolved against the company. Farris’ case, 151 N. C., 483; Ray’s case, 141 N. C., 84; Smith’s case, 132 N. C., 819, essentially qualifying, if it does not expressly overrule, this same case as it appears in 130 N. C., 344.

And the Court is further of opinion that on the facts in evidence, if established, the ordinary inferences permissible where one goes on a railroad track do not obtain here, and that it was not a negligent act on part of plaintiff in going forward on the track, nor in taking thе position described in the testimony. So far as these facts now disclose, the only engine whose approach was to be apprehended, and the one which caused the injury, was then at rest, and the entire crew, including the engineer himself, had gone forward to observe the men engagеd ‍​​‌​​​‌​‌‌​‌‌​​​​‌​‌​‌‌‌​​​‌‌​​‌​​‌​​​‌​‌‌​‌‌‌‌​‍in repairing the trestle and note the progress of the work; and the only conduct, if any, which could be imputed to plaintiff for negligence on this evidеnce was in not getting up from his position when he saw the engineer leave the trestle and return to his engine. Whether, under all the facts and circumstances, as they may be received by the jury, this was negligence on part of plaintiff and the proximate cause of the injury, may be submitted on the secоnd issue as to contributory negligence, and determined on principles eontrollinng that question. Ramsbottom v. R. R., 138 N. C., 38.

If such contributory negligence is established by the verdict, thе Case will then present the question whether defendant negligently failed to avail itself of the last clear chance of avoiding the injury, under the doctrine as recognized and applied in Sawyer’s case, 145 N. C., 24-27. In that case, on pages 27-28, speaking to the question here presented, the Court said:

“These logging roads, in various instances and in different decisions, have been described and treated as railroads and held to the same measure of responsibility and the same standard of duty. Hemphill v. Lumber Co., 141 N. C., 487; Simpson v. Lumber Co., 133 N. C., 96; Craft v. Lumber Co., 132 N. C., 156. And it is well established that the employees of a railroad company engaged in operating its trains are required to keep a careful and continuous outlook ‍​​‌​​​‌​‌‌​‌‌​​​​‌​‌​‌‌‌​​​‌‌​​‌​​‌​​​‌​‌‌​‌‌‌‌​‍along the track, and the company is responsible for injuries resulting as the proximate consеquence of their negligence in the performance of this duty. Bullock’s case, 105 N. C., 180; Dean’s case, 107 N. C., 686; Pickett’s case, 117 N. C., 616. This particular duty arises not so much from the fact that railroad companies are common carriers or gwsi-public corporations, as from the high degree *46of care imposed upon them on account of the dаngerous agencies and implements employed and the great probability that serious and in many instances fatal injuries are almost certain to result in case of collision.”

And numerous other decisions with us uphold the same principle. Ordinarily, cases calling for application of the dоctrine indicated arise when the injured person was down on the track, apparently unconscious or helpless, as in Sawyers case, just referred to, or in Pickett's case, 117 N. C., 616, or in Dean’s case, 107 N. C., 687; but such extreme conditiоns are not at all essential, and the ruling should prevail whenever an engineer operating a railroad train does or, in proper perfоrmance of his duty, should observe that a collision is not improbable, and that a person ‍​​‌​​​‌​‌‌​‌‌​​​​‌​‌​‌‌‌​​​‌‌​​‌​​‌​​​‌​‌‌​‌‌‌‌​‍is in such a position of peril that ordinary effort on his part will not likely avail to save him from injury; and the authorities are also to the effect that an engineer in such circumstance should resolve doubts in favor of the safer course.

This was held in Clark’s case, 109 N. C., 430, 443, 444; Bullock’s case, 105 N. C., 180, and others of like import.

In Bullock’s case, Avery, J., for the Court, said: “It is the duty of an engineer, when running his engine, to keep a constant lookout for obstructions, and when an obstruction is discerned, no matter when or where, he should promptly resort to all means within his power, known to. skillful engine-drivers, to avert the threatened injury or dаnger.’ Woods’ R. L., sec. 418, p. 1548; R. R. v. Williams, 65 Ala., 74; R. R. v. Jones, 66 Ala., 507. If the engineer, so soon as he discovered that the wagon was detained upon the track and could not, for the time, gеt out of the way, or so soon as with proper care and watchfulness he would have had reason to think such was its condition, had used every means and appliance in his power to stop the train, the defendant would not have been liable. But the judge omitted to tell the jury that it was negligence on the part of defendant, if the engineer could have seen, by watchfulness, though he did not in fact see, that the road was obstructed in time to stoр his train before reaching the crossing. Carlton v. R. R., 104 N. C., 365; Wilson v. R. R., 90 N. C., 69; Snowden v. R. R., 95 N. C., 93. The defendant could not complain of this error. It is true that, ordinarily, an engineer has. a right to assume that one who has time will get out of the way, but he is not warranted in acting upon this assumption after he ‘has reason to believe that he is laboring under some disability, or that he does not hear or comprehend the signals.’ ”

And in Clark’s case, supra, the Court said: “It is settled law in this State that where an engineer sees that a ‍​​‌​​​‌​‌‌​‌‌​​​​‌​‌​‌‌‌​​​‌‌​​‌​​‌​​​‌​‌‌​‌‌‌‌​‍human being is on the traсk at a point where he can step off at his pleasure and *47without delay, he can assume that he is in full possession of his senses and faculties, without information to the contrary, and will step aside before the engine can overtake him. But where it is apparent to an engineer, who is keeping a proper outlook, that a man is lying'prone upon the track, or his team is delayed in moving a wagon over a crossing, it has been declared that the engineer, having reason to believe that life or property will be imperiled by going on without diminishing his speed, is negligent if he fails to use all thе means at his command, .consistent with the safety of the passengers and property in his charge, to stop his train and avoid coming in conta'ct with the person so exposed.” Citing Deans v. R. R., 107 N. C., 686; Bullock v. R. R., 105 N. C., 180.

As the case goes back for a new trial, we do not consider it advisable to discuss the testimony or its applicаtion more fully; but, under the authorities cited, we hold that there was error in dismissing the action, and that plaintiff is entitled to have his case passed upon by thе jury. The order of nonsuit, therefore, will be set aside, and the question of defendant’s responsibility considered on the two issues as to negligence on part of plaintiff ; and in case a verdict on these issues require it, a further issue should be submitted, involving the question whether there was a negligent failure on pаrt of defendant to avail itself of the last clear chance of avoiding the injury, and if so, was such failure the proximate cause of plaintiff’s injury.

Thеre is nothing in this case that in any way conflicts with the decisions of this Court in Strickland’s case, 150 N. C., 4. In that case the intestate killed by a train had entered and was walking on the track оf a railroad in the night-time, and about the schedule time of a fast passenger train, at or about the beginning of a trestle. It was held that the intestate wаs clearly ‍​​‌​​​‌​‌‌​‌‌​​​​‌​‌​‌‌‌​​​‌‌​​‌​​‌​​​‌​‌‌​‌‌‌‌​‍guilty of contributory negligence, and that under the facts and 'attendant circumstances there was nothing to indicate to the engineer that the intestate was in a position of peril, or that called for the application of the doctrine of the last clear chance.

For the error indicated, the order of nonsuit is set aside and a new trial awarded.

Error.