238 N.C. 162
N.C.
1953
Parker, J.

The defendants assign as Error No. One the denial of the defendants’ motions for nonsuit made at the close of the plaintiff’s evidence. The defendants offered no evidence. The defendants further assign as errors the court’s refusal to submit issues of negligence and *167 contributory negligence, as requested by tbe defendants, and tbe court’s submitting only tbe issue as to willful or wanton negligence; and also assigns as errors parts of tbe charge, and part of tbe argument of one of counsel for tbe plaintiff.

We shall discuss first tbe motions for judgment of nonsuit, for if those motions should have been allowed, a discussion of tbe other assignments of error will become academic.

Tbe duty of tbe court in passing upon a motion for nonsuit has been stated so frequently and so clearly, that to attempt to restate it would be like carrying coal to Newcastle. Suffice it to say that on such a motion tbe court interprets tbe evidence in tbe light most favorable to tbe plaintiff, and gives to him tbe benefit of every inference which tbe testimony fairly supports. Cox v. Freight Lines, 236 N.C. 72, 72 S.E. 2d 25; Graham v. Gas Co., 231 N.C. 680, 58 S.E. 2d 757.

Tbe plaintiff appellee in her brief states “our case was bottomed upon tbe doctrine of that conduct on tbe part of tbe railroad which amounts to wantonness, willfulness, or tbe like, precluding tbe defense of contributory negligence.”

These two questions are first presented. First, considering tbe evidence as set forth above in tbe light most favorable to tbe plaintiff, was it sufficient to show that tbe defendants committed an act of willful or wanton negligence in detaching a car from tbe shifting engine at or east of tbe Lexington Avenue Crossing, and without anyone on tbe car and without any signal or warning, and without any employee of theirs being in tbe yard to warn anyone of tbe moving car, letting it move at a slow speed on its Short Track entirely in their freight yard and on their property, under tbe conditions then and there existing? Second, if tbe evidence was not sufficient to show willful or wanton negligence, was it sufficient to show that tbe defendants were guilty of ordinary negligence ?

“An act is wanton when, being needless, it manifests no rightful purpose, but a reckless indifference to tbe interests of others; and it may be culpable without being criminal.” Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82. “An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to tbe rights of others.” Foster v. Hyman, 197 N.C. 189, 148 S.E. 36.

“Tbe term ‘wanton negligence’ . . . always implies something more than a negligent act. This Court has said that tbe word ‘wanton’ implies turpitude, and that tbe act is committed or omitted of willful, wicked purpose; that tbe term ‘willfully’ implies that tbe act is done knowingly and of stubborn purpose, but not of malice . . . Judge Thompson says: ‘The true conception of willful negligence involves a deliberate purpose not to discharge some duty necessary to tbe safety of tbe person or property of another, which duty tbe person owing it has assumed by contract *168 or which is imposed on the person by operation of law. "Willful or intentional negligence is something distinct from mere carelessness and inattention, however gross. We still have two kinds of negligence, the one consisting of carelessness and inattention whereby another is injured in his person or property, and the other consisting of a willful and intentional failure or neglect to perform a duty assumed by contract or imposed by operation of law for the promotion of the safety of the person or property of another.’ Thompson on Neg. (2d Ed.), Sec. 20, et seq.” Bailey v. R. R., 149 N.C. 169, 62 S.E. 912.

To constitute willful injury there must be actual knowledge, or that which the law deems to be the equivalent of actual knowledge, of the peril to be apprehended, coupled with a design, purpose, and intent to do wrong and inflict injury. A wanton act is one which is performed intentionally with a reckless indifference to injurious consequences probable to result therefrom. Ordinary negligence has as its basis that a person charged with negligent conduct should have known the probable consequences of his act. Wanton and willful negligence rests on the assumption that he knew the probable consequences, but was recklessly, wantonly or intentionally indifferent to the results. Everett v. Receivers, 121 N.C. 519, 27 S.E. 991; Ballew v. R. R., 186 N.C. 704, 120 S.E. 334; Foster v. Hyman, supra; S. v. Stansell, 203 N.C. 69, 164 S.E. 580; 38 Am. Jur., negligence, Sec. 48.

“In strictly accurate use, the terms ‘willfulness’ and ‘wantonness’ express different ideas and are clearly distinguishable, the distinction resting chiefly in the nature and extent of intent involved. It has been said that ‘the difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether it does so or not.’ ” 65 C.J.S., Negligence, p. 379.

The plaintiff vigorously contends that the movement of the detached coal car under all the circumstances was willful or wanton negligence on the part of the defendants, and quotes copiously from the opinion in Johnson v. R. R., 163 N.C. 431, 79 S.E. 690, and also cites and relies upon Wilson v. R. R., 142 N.C. 333, 55 S.E. 257; Vaden v. R. E., 150 N.C. 700, 64 S.E. 762; Farris v. R. R., 151 N.C. 483, 66 S.E. 457; 151 A.L.R., p. 37; 167 A.L.R., p. 1253; and other authorities. The defendants as vigorously contend otherwise.

Our following cases are where a detached car movement caused injury or death at a public crossing. Bradley v. R. R., 126 N.C. 735, 36 S.E. 181 (the view was also obstructed by a line of boxcars on a sidetrack); Wilson v. R. R., supra; Johnson v. R. R., supra; Lutterloh v. R. R., 172 N.C. 116, 90 S.E. 8 (a 12-year-old boy). In the Johnson, case the Court said: “This Court has recently declared, in Vaden v. R. R., 150 N.C. 700, *169 that, ‘making flying switches’ on the railway tracks and sidings running across and along the streets of populous towns is per se gross negligence, and has been so declared by all courts in this country and by text-writers generally. It is stated in one of the best known textbooks that the use of a running switch in a highway in the midst of a populous town or village is of itself ‘an act of gross and criminal negligence on the part of the Company,’ ” citing authorities. In Lutterloh v. R. R., supra, this Court stated: “It is established with us by repeated decisions that it is negligence per se to make one of these flying switches along the streets of populous towns or at public or much frequented crossings,” citing the Johnson case, supra, and others. In the Lutterloh case issues of ordinary negligence and contributory negligence were submitted to the jury, as well as in the Bradley and Wilson cases.

In Vaden v. R. R., supra, a 13-year-old boy was struck and killed by a flying switch about 30 feet from where Tomlinson Street crosses the tracks. He was killed on a switch track located in a populous part of High Point immediately in front of a factory where he worked. The factory had just closed for the day, and employees were filling the streets and crossings. Issues of negligence and contributory negligence were submitted. Brown, J., wrote the opinion for the Court.

In Bordeaux v. R. R., 150 N.C. 528, 64 S.E. 439, these facts appeared from the evidence. Plaintiff’s intestate was a car repairer employed in defendant’s switching and repair yards at South Eocky Mount. To protect its workmen the defendant had long since adopted and published rules requiring those repairing cars on tracks in the yards to place a blue flag on the car to give notice to the switch enginemen not to move cars or run other cars in on them. The intestate with two fellow-workmen went to repair a tank ear on Track No. 1. There was much shifting on the yard tracks at the time. They decided it was a short job, and put out one person to watch, who failed to do so. While the intestate was under the car repairing it, the switch engine “kicked” or “pitched” a car loaded with lumber on to Track No. 1, which struck another car, and that against the tank car, running it over intestate and killing him. It was a custom of long standing in the yards, and well known, that if the job was short, the flag was not put out. Brown, J., speaking for the Court wrote: “We admit that the rulings of the Court in regard to ‘kicking’ cars, or making flying switches at public or much frequented crossings, do not apply to the constant changing or switching of cars that is inevitable in the extensive repair and switch yards of a large railway system.” Issues of ordinary negligence, contributory negligence and damages were submitted to the jury.

In Farris v. R. R., 151 N.C. 483, 66 S.E. 457, these facts appeared. The intestate was an employee of the defendant. He was walking down *170 a space 6 to 8 feet wide between the first and second tracks of the defendant in a busy yard of the defendant in Asheville. An engine on the third track passed him from behind blowing off his hat, which fell on the second track. He stopped to pick it up and was run over and killed by four gondola cars coming from behind. The engine had made a “flying switch,” and the four coal cars were sent on the second track. Issues of ordinary negligence, contributory negligence, last clear chance and damages were submitted. The Court said quoting 3 Elliott on R. R. (2d Ed.), sec. 1265G-: “The practice of making running or flying switches is inherently dangerous, and is considered by the Court in numerous decisions. The Courts have not hesitated to hold railroad companies liable for injuries to trespassers, on the track, thus inflicted, on the grounds of negligence. The case of this negligence seems specially plain where the cars are sent in swift motion, with no one at the brakes, upon switch tracks commonly used by persons for foot paths and crossings, without objection from the company, though not a public crossing. It would seem a duty owed by the railroad company, even to trespassers, to station lookouts in such positions on the moving cars, that they can watch ahead of them and warn persons thereon of their danger.”

See Hudson v. R. R., 142 N.C. 198, 55 S.E. 103, where a flying switch was made into a spur track in the yard of an oil company. An employee of the oil mill was killed. Issues of negligence and contributory negligence were submitted to the jury.

In Bordeaux v. R. R., supra, it is recognized that an accident in a railroad yard and on its property caused by a flying switch presents quite a different problem from accidents caused by flying switches across and along the streets of populous towns or villages. After a thorough search we have been able to find only a few cases that deal with flying switches in a busy railroad yard. The text-writers’ references to the subject are meager.

“It is a negligent act to send detached cars along a railroad track, without adequate means of control and with no warning signal, at a place where it is the duty of the railroad company to keep a lookout for people who are likely to be using the track; and where such negligent act results in the infliction of personal injuries, the railroad company is liable for the injuries. And under some circumstances the company may be held liable though the negligent act is committed in its own yard, and though the person injured is a trespasser or a licensee.” 10 Anno. Cases Note on p. 18, citing many authorities.

It is said in 44 Am. Jur., Railroads, Sec. 454: “The practice of making flying switches or of kicking detached cars along a railroad track without adequate means of control and with no warning at a place where persons are likely to be on the track has been universally condemned by the courts *171 as constituting negligence, as where the ears are shunted or kicked along a track across which persons are constantly passing on a well defined pathway. Under some circumstances the company may be held liable though the negligent act is committed in its own yard, and though the person injured is a trespasser or a licensee ... It cannot ordinarily be said that it is negligence per se for a railroad company to make a “running,” “flying,” or “gravity” switch in its yard in a city, at a point where its tracks neither occupy nor cross'a street . . .” See also 75 C.J.S., Railroads, p. 287; Hawkins v. Beecham, 168 Va. 553, 191 S.E. 640.

It is said in 167 A.L.R. Anno. p. 1273: “Although the cases are not in complete accord, most courts that adhere to the general rule that imposes a duty of reasonable care on the part of the railroad company toward persons using a path across railroad tracks where that use is a long continued and general one, apparently acquiesced in by the railroad company, take the position that the mere fact that the crossing in question is one over the railroad tracks in the railroad yards or is one over railroad switching tracks, does not necessarily make one using the crossing a trespasser or bare licensee and relieve the railroad company from the duty of keeping a lookout for such person and of exercising due care to avoid injuring him.” Citing numerous cases. It is further stated in the Anno. p. 1277: “It is, of course, necessary in order to raise any general duty on the part of the railroad company to look out for persons using footpaths leading across its railroad yards, to show a general and notorious use of the crossing through the yards for such length of time as to raise an inference of knowledge and acquiescence on the part of the railroad company from which an invitation or license to cross may be implied.”

Apparently the intestate was in the railroad yard to watch a derailed car being put back on the rails by the switch engine and a bulldozer, as he had a particular interest in mechanical things. Over a period of 14 years pedestrians, and during school times children, have been walking up and down the tracks in the yard and crossing the tracks in the yard, practically every day and night.

The evidence classifies the intestate as a licensee in the freight yard. Murphy v. Murphy, 202 N.C. 394, 162 S.E. 901; Gibbs v. R. R., 200 N.C. 49, 156 S.E. 138; Peterson v. R. R., 143 N.C. 260, 55 S.E. 618; Willis v. R. R., 122 N.C. 905, 29 S.E. 941.

In Brown v. R. R., 172 N.C. 604, 90 S.E. 783, it is said: “In Troy v. R. R., 99 N.C. 298, Davis, J., held that where the public had been fin the habit for a series of years of using the track, with the acquiescence of the defendant, this amounts to a license or permission and imposes upon the railroad company the duty to exercise care on that account.’ ”

In Norris v. R. R., 152 N.C. 505, 67 S.E. 1017, the Court said: “It has been repeatedly held with us that . . . where a person is on the track, *172 at a place where travellers are habitually accustomed to use the same for a walkway, they have a right to rely, to some extent and under some conditions, upon the signals and warnings to be given by trains at public crossings and other points where such signals are usually and ordinarily required, and that a failure on the part of the company’s agents and employees operating its train to give proper signals at such a point, is ordinarily evidence of negligence; and where such failure is the proximate cause of an injury it is, under some circumstances, evidence from which actionable negligence may be inferred.”

As to a licensee the duties of a property owner are substantially the same as with respect to a trespasser. But a vital difference arises out of conditions which impose upon the owner of property the duty of anticipating the presence of a licensee. If the owner, while the licensee is upon the premises exercising due care for his own safety, is affirmatively and actively negligent in the management of his property or business, as a result of which the licensee is subjected to increased danger, the owner will be liable for injuries sustained as a result of such active and affirmative negligence. Jones v. R. R., 199 N.C. 1, 153 S.E. 637.

At the time the detached car movement began near or east of Lexington Avenue no one was in the freight yard except the intestate, and possibly Long on the bulldozer. The intestate was on or near the Dead Track when last seen before being seen under the coal car. The coal car was coming down he Short Track. Between these two tracks were the Main Track and the Passing Track. There was nothing to obstruct the intestate’s view. He was 47 years old; it was 2:00 p.m.; the day was fair; the yard was generally level. There is no evidence where the intestate was, when the car was detached. There was no brakeman on the coal car; no whistle or signal was given of its movement. If the intestate had remained on or near the Dead Track during the movement of the coal car, he would not have been killed.

Considering the evidence in the light most favorable to the plaintiff, and giving to the plaintiff every inference fairly to be drawn therefrom, we think there is no evidence that the defendants had actual knowledge, or that which the law deems to be equivalent of actual knowledge, that the intestate was in a position of peril, and designedly, purposely and intentionally killed him, and that there is no evidence that the defendants under the circumstances intentionally made the detached car movement with a reckless indifference to the rights of the intestate and others.

While there is no evidence of willful or wanton negligence on the part of the defendants, considering the evidence that for 14 years or more pedestrians day and night walked up and down the tracks in the railroad yard, and all the other facts, we do think there is evidence from which actionable negligence may be inferred.

*173 Tbe defendants Lave pleaded the contributory negligence of the plaintiff’s intestate as a bar to recovery. The learned counsel for the plaintiff most adroitly selected the doctrine of willful or wanton negligence as their battlefield in an endeavor to preclude the defense of contributory negligence. The approach of the detached coal car was totally unobstructed for a distance of a quarter of a mile. There existed no unusual conditions created by the defendants tending to distract and divert the attention of a man of ordinary prudence and self-possession from the duty of looking and listening for an approaching train or car. It is not a ease of sudden peril, imminent danger and emergency not brought about by the negligence of the intestate. Pope v. R. R., 195 N.C. 67, 141 S.E. 350. The intestate was 47 years old; it was 2:00 p.m.; it was fair and the sun shining. The freight yard was level. The presumption of due care on the part of the intestate is repelled by the evidence which shows that the intestate must have seen the coal car if he had looked, in time to have prevented the accident. If the coal car was moving noiselessly, that would not relieve the intestate of the duty of looking. Dowdy v. R. R. and Burns v. R. R., 237 N.C. 519, 75 S.E. 2d 639; Godwin v. R. R., 220 N.C. 281, 17 S.E. 2d 137. The car was barely moving when the intestate was run over. It is the centuries old story of those who “have eyes to see, and see not.” Ezekiel, Ch. 12, v. 2. Davidson v. R. R., 171 N.C. 634, 88 S.E. 759.

The intestate, a pedestrian, in the daytime, got upon the Short Track, in the freight yards of the defendants, the view of which was totally unobstructed, and was killed by a detached car barely moving, and did not look; that was negligence on the part of the intestate, and such negligence was the proximate cause of the intestate’s death precluding recovery of damages by the plaintiff, even if the car was moving noiselessly so he could not hear it. Rimmer v. R. R., 208 N.C. 198, 179 S.E. 753; Young v. R. R., 205 N.C. 530, 172 S.E. 177; Tart v. R. R., 202 N.C. 52, 161 S.E. 720; Coleman v. R. R., 153 N.C. 322, 69 S.E. 251, where it is said: “The doctrine that such negligence bars recovery has been consistently recognized by this Court in at least thirty-five cases beginning with Parker v. R. R., 86 N.C. 221, and ending with Mitchell v. R. R., this term.”

The plaintiff’s case is not saved by the doctrine of last clear chance. In the first place it was not pleaded. In order to invoke this doctrine, the plaintiff must plead and prove that the defendants, after perceiving the danger, and in time to avoid it, negligently refused to do so. Bailey v. R. R. and King v. R. R., 223 N.C. 244, 25 S.E. 2d 833; Hudson v. R. R., 190 N.C. 116, 129 S.E. 146. Second, if the plaintiff had pleaded this doctrine, there is no evidence in the case to support the allegation. Further, Stacy, C. J., speaking for the Court in Rimmer v. R. R., supra, says *174 this doctrine does not apply when the contributory negligence of the party injured, as a matter of law, bars recovery, citing Redmon v. R. R., 195 N.C. 764, 143 S.E. 829. To the same effect Dowdy v. R. R., and Burns v. R. R., 237 N.C. 519, 75 S.E. 2d 639; Sherlin v. R. R., 214 N.C. 222, 198 S.E. 640, in which many cases are cited; Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E. 2d 337.

For the reasons stated above we are of the opinion, and are impelled to hold, that the motions for judgment as in ease of nonsuit duly lodged by the appealing defendants should have been allowed. It, therefore, follows that the judgment below must be reversed, and it is so ordered.

Reversed.