Mayes v. Southern Railway Co.

ClarK, J.:

The exception to the charge, and the first three exceptions for refusal to charge, present substantially the same proposition — that, though the plaintiff looked and listened, and did not see nor hear the approaching train, yet, if he might have done so, it is contributory negligence. If by this it was proposed to ask the court to charge that the plaintiff was not excused if he looked and listened carelessly and negligently, this should have been pointedly and plainly asked. Besides, it was covered substantially by the charge given, that “ it was the duty of the plaintiff to use ordinary and reasonable care to avoid accident, and to exercise his senses of hearing and sight, to keep a lookout for approaching trains, and if he did not, and drove inattentively on the track, without keeping a *769 lookout or listening for approaching trains, it is contributory negligence.” This charge, repeated three times in different phases, was really erroneous towards the plaintiff (the appellee), in that it makes him guilty of contributory negligence for not looking and listening in all cases, even if no light was on the front, end of the moving train (at night), and no bell rung. Yet, if such was the case (and the plaintiff both alleged it was and offered proof of it), the failure of the plaintiff to look and listen at a crossing was not contributory negligence.

Hinkle v. Railroad Co., 109 N. C., 472 ;

Russell v. Railroad Co., 118 N. C., 1098 .

But we do not understand the defendant to complain that the jury was not instructed that the looking aud listening must be done with proper care, but his proposition is that, if the plaintiff looked and listened and might have seen or heard and did not see or hear, as a proposition of law he did not look and listen. That, however, is a matter of fact, and nota proposition of law. By “looking and listening ” the jury must have understood, under the terms of the charge, “ looking and listening with proper attention.” The syllogism of the defendant is something like this: “ Though 3 plus 4 are 7, yet, if they make 8, they are not 3 plus 4.” True enough, but the question of fact is whether there was “ 3 plus 4,” and that determines whether the sum is 7 or not. The defendant is traveling in a circle. If the plaintiff looked and listened with care, he saw or heard the approaching train if he could have done so ; and if he did not see and hear it, when he might have done so, then he did not, with proper attention, look and listen.

Pickett v. Railroad Co., 117 N. C., 616 , and several cases since, have settled that, though an engineer does not see a man lying on the track, the company is liable if, with reasonable care, the engineer could have seen him in time to avoid injury. But that is based on the engineer’s negligence in *770 not keeping a proper lookout. Here, the court told the jury that the plaintiff was guilty of contributory negligence if he went on the crossing without keeping a proper lookout and listening. If the engineer keeps a proper lookout, and is unable to see the man lying on the track till too late to avoid injury, there is no negligence on his part and no liability on the company.

The only other exception is that the court did not give an instruction asked that, though the defendant was running its train (backward on a dark night) at an excessive speed, and without ringing the bell, and without a light on the front end of the leading car, still, if the plaintiff could have avoided the injury by the use of reasonable care, the jury should find him guilty of contributory negligence. This was in substance given by the court in its charge on the second issue, in stating the duty of the plaintiff to stop, look, and listen before attempting to cross. And, in so doing, there was error as against the appellee, as already pointed out, by not qualifying it by adding, as in Hinkle v. Railroad Co., and Russell v. Railroad Co., supra, that the plaintiff would not be guilty of contributory negligence in going upon the railroad crossing without looking and listening, if the defendant did not sound the whistle or ring the bell, or, in the night-time, did not have a light on the front end of the train, the proximate cause in such cases being the failure to give warning. It is not negligence in a traveler to cross the track, unless he disregards a warning not to cross which he might have seen or heard with proper care.

No Error.