SMITH . RAILWAY CO.

or any whistle blown, or any warning of any kind given; that he was stricken about half an inch from the left temple on the forehead, going across the top of his head, and the bone on the left eye was broken or injured, and he was thrown on the right side of his shoulder, and was stricken across the breast, and suffered from his chest for a long time afterwards. Witness illustrated to the jury his position and that of the target and of the engine. Said he was relying on the rules, of which he knew, for his protection. That it was impossible for him to do the work well and at the same time keep a constant lookout for the movements of the engine. That if he put his whole attention on the painting he could not be on the lookout all the time. When he looked down he looked both ways. Looked down and did not see any engine. Thought he could get through painting before the engine came out of the coach-yard, and if it did come out he expected it to ring the bell or blow the whistle to give him warning. It was necessary for him to keep his eye on the target while he was painting because there were two colors. Had been employed by the defendant company for about three years; says he did not hear the bell ring. That he put his bucket over next to the rail, illustrating the position in which he stood and the point at which he put his bucket by means of photographs offered in evidence. The track was pretty fair, level and straight.

On re-direct examination plaintiff stated that when he was doing this work in the manner he had shown the jury he was relying upon the rules of the company and the ordinance of the city of Charlotte for his protection. Wouldn't say that he had nothing else in mind. Thought if the engine came it would give some signal to get out of the way.

Plaintiff introduced Sherman Ludwick, who testified that he was a short block from where the plaintiff was painting. Saw him painting the target. When the train passed up the

SMITH V. RAILWAY CO.

track and struck Mr. Smith, the witness heard them "holler;" saw the engine; heard no bell ringing; no bell was ringing; could have heard it if it had been; the train was running twenty-five or thirty miles an hour.

The plaintiff introduced Kerry Reynolds, who testified that he was about 100 feet from the plaintiff at the time of the injury. The train was running thirty miles an hour. He says he saw that the plaintiff was in danger and "hollowed" at him twice to look out, and about that time it struck him.

Thomas Robinson, introduced by the plaintiff, says that he was working fifteen or twenty feet from the plaintiff; that the switch engine was coming from the depot with a sleeper, and when it went down the main line it came in the coachyard. The witness was busy wiping off the coach; the plaintiff was painting. The last witness saw the plaintiff; the engine was as far as from "here to the middle of the street," and the witness heard Grant Wallace "hollow" "I think we have struck Mr. Smith." I looked around at the engine and saw Grant pull the bell cord, and saw the plaintiff; did not hear the bell ring until after the plaintiff was struck, could have heard it ring; the train was moving twenty or twentyfive miles an hour; the engineer was on the opposite side from the plaintiff; saw nobody on the left hand side; the fireman did not seem to be in his place.

M. L. Harris, witness for the plaintiff, testified that the train was running ten to fifteen miles an hour; heard no bell; could have heard it if it had been ringing; heard no whistle blow.

The defendant introduced the engineer, who testified that he saw the plaintiff painting and passed him several times; "I reckon a dozen times;" that he was not in his way, and if he had stayed where he was when the witness saw him, he was perfectly safe; he was perfectly safe where he was paint

SMITH V. RAILWAY CO.

ing as long as he stayed there; the tender obscured his view about sixty feet before he reached the plaintiff; engine was backing; the bell was ringing; that he was about 400 feet from the plaintiff when he first saw him; if there had been any danger, could have stopped; a man could stand between the target and the rail and let an engine pass, I have seen it done; no part of the engine struck him; it was the corner of the tender-what is called the pole socket.

The defendant introduced J. F. Boyd, who stated that he was painting targets on the morning of the injury, and that it required no skill to do so; witness was about 100 feet from the plaintiff; witness illustrated how he would paint a switch target without any danger to himself.

There were several other witnesses whose testimony tended to sustain the contentions of the plaintiff and the defendant.

The plaintiff offered in evidence section 299 of the ordinances of the city of Charlotte, prohibiting the running of trains at a greater rate of speed than four miles an hour in the corporate limits of the city. At the close of the plaintiff's testimony, the defendant made a motion to non-suit, which was denied. At the close of the whole evidence, the motion to non-suit was renewed and overruled, and the defendant excepted.

We concur with his Honor in his ruling upon this motion. There was evidence sufficient and competent to be submitted to the jury upon the issues raised by the pleadings. He submitted the following issues:

1. Was the plaintiff injured by the negligence of the defendant's lessee as alleged in his complaint?

2. Did the plaintiff by his own negligence contribute to his injury as alleged?

3. If the plaintiff's negligence contributed to his injury, could the defendant's lessee, notwithstanding the said negli

SMITH V. RAILWAY CO.

gence of the plaintiff, have avoided the injury to him by the exercise of ordinary care?

4. What damage, if any, is the plaintiff entitled to recover?

The defendant requested the court to charge the jury that if they believd the evidence, the answer to the first issue must be "No." The instruction was refused and the defendant excepted. There was no error in refusing this instruction.

The court stated the contentions of the parties, charged the jury at length, explaining to them the law applicable to the testimony, and charged them that if they found that there was an ordinance in force in the city of Charlotte forbidding the running of an engine in the corporate limits at a speed greater than four miles an hour, and the engineer was running at a greater rate of speed than four miles an hour within the corporate limits in violation of the town. ordinance, it would be evidence of negligence on the part of the defendant to be considered by them in connection with the other testimony. He also instructed them that it was the duty of the defendant's engineer to ring the bell while moving his engine in the yard, and to use all proper and reasonable efforts to avoid injuring the servants of the defendant engaged in work on the yard. He also instructed the jury in regard to the duty of the engineer to observe the rules laid down by the defendant. We think his Honor's instructions are fully sustained by the authorities prescribing the duty of the defendant under the circumstances testified to.

In Erickson v. Railroad, 41 Minn., 500; 5 L. R. A., 786, the plaintiff was lawfully at work as a section hand, in close proximity to the defendant's track, where he was liable to be stricken by passing trains. It was held that as the plaintiff occupied his position rightfully as an employee of the

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defendant, he was not required to look out for passing engines, as in case of trespassers and licensees, and that the company owed him the duty of "active vigilance," in giving proper signals and warnings of the approach of engines and trains; and that the plaintiff had the right to rely on the continued performance of this duty without the necessity, while engrossed in his work, of keeping constant lookout for approaching trains.

In Schulz v. Railroad, 59 N. W., 192, the court held that, without regard to any custom or any rule of the company as to ringing the bell or giving other warnings, the defendant is required to give some signal of the approach of an engine, and that the failure to ring the bell or give warning was not a risk assumed by the plaintiff.

In Kelly v. Railroad, 8 S. W., 420, the plaintiff was an experienced track repairer and was fastening a fishplate to a Trail in the yard of the defendant at 12 o'clock in the day, and cars were frequently passing over the track where he was at work. A train was permitted to approach him without the ringing of the bell or other warning, and without having any one posted on the car to give proper signals. The plaintiff being absorbed in his work did not hear the noise of the train, until he looked up, but too late to avoid being struck by the car. It was held that the plaintiff was lawfully and rightfully on the track, and if no person was placed on the car to give warning, or if being placed there he failed to warn the plaintiff, and no other signal was given, then the company was liable. "This rule," says the court, "is humane, conservative of human life and consonant with public policy, and that, when the person is lawfully and rightfully on the track or in the way of passing trains and apparently unmindful of approaching trains, the duty to give signals is imperative."

In Railroad v. Hinzie, 18 S. W., 681, the plaintiff was