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BESSENT V. RAILWAY Co.

her companion directed her attention to the train, and he stepped off and was not injured. She was not on a public street, if that could make any difference, for it is evident that the cut was not considered as any part of the street, though it was used by the people in the vicinity as a common foot path. If it had been a part of the street, and the duty of sounding the whistle or ringing the bell was imposed upon the defendant for that or any other reason, and the company would have been negligent if it had not given warning of the approach of the train, it is conclusively shown in this case that the whistle was sounded and that the noise made by the train could easily have been heard by the intestate; and it further appears, as well as that fact can be established by testimony, that she actually did know that the train was coming. Everybody else saw and heard the train and left the track, and why was she not guilty of negligence in not doing what they did, and did easily? She had equal opportunity with them and her failure to avail herself of it was an omission of duty on her part, which was necessarily the direct and proximate cause of her injury and death. The wrong, therefore, cannot, in any view of the testimony and in contemplation of law, be imputed to the defendant, even though it may have been guilty of negligence.

In Neal's case the intestate was walking along the track and was seen by the engineer, but there was no direct evidence that the intestate either saw or heard the engine. In reference to the facts of that case, the court said: "If the plaintiff's intestate was walking upon the defendant's road in open day light, on a straight piece of road, where he could have seen the defendant's train for 150 yards, and was run over and injured, he was guilty of negligence, and although the defendant may have also been guilty of negligence in running its train at a greater rate of speed than was allowed by the town ordinance, or in not ringing the bell as required

BESSENT v. RAILWAY Co.

by the ordinance, and in not keeping a lookout by its engineer, as it should have done, yet the injury would be attributed to the negligence of the plaintiff's intestate."

In McAdoo's case, 105 N. C., 140, this court held that the plaintiff was guilty of negligence, which in law was the proximate cause of his injury, because he stood or walked upon the track with his back towards the engine and did not see it before he was stricken, and that the speed of the train and the failure to give a signal did not alter the case.

In High v. Railroad Co., 112 N. C., 385, the court laid down the principle that the failure of the engineer to keep a proper lookout subjects the company to liability only in those cases where, if he had seen the situation of the injured party, it would have become his duty to have given the signal, and that he had the right to assume up to the last moment, when it was too late to prevent the injury, that the person on the track would get out of the way, and that it made no difference how near the person was to the engine or train, or how fast the train was running. It appeared in that case that it was a windy day, that the train was late, that the plaintiff was wearing a bonnet which obstructed her view, but the court said that those facts could make no difference in the decision of the case, and that, under the facts and circumstances presented by the evidence for the plaintiff the law referred the injury to her negligence as its proximate cause, and held the company blameless. Many other cases to the same effect have been decided by this court. According to the principle declared in all of them, the question of liability is not to be solved by any reference to what the defendant may have done or omitted to do, but by the conduct of the plaintiff, and if the latter would not see when he could see, or would not hear when he could hear, and remained on the track in reckless disregard of his own safety, the law adjudges any injuries he may have received to be the result of his

BESSENT V. RAILWAY CO.

own carelessness. Parker v. Railroad, 86 N. C., 221; Meredith v. Railroad, 108 N. C., 616; Norwood v. Railroad, 111 N. C., 236; Syme v. Railroad, 113 N. C., 565; Stewart v. Railroad, 128 N. C., 518; Wycoff v. Railroad, 126 N. C., 1152; Sheldon v. Asheville, 119 N. C., 606; Ellerbe v. Railroad, 118 N. C., 1024.

But the case of Lea v. Railroad, 129 N. C., 459, is a direct authority in support of the ruling of the court below. In that case it appeared that the defendant, for the purpose of making up a freight train, was moving two cars with an engine between them, one of the cars being drawn and the other pushed by the engine as in our case. The intestate of the plaintiff was standing on the end of the crossties in the town of Durham at a place where the track was used by pedestrians. There was no one on the front car to give a signal of the approach of the train and there was no bell rung or whistle sounded. The ordinance of the town of Durham prohibited the running of trains within its limits at a greater rate of speed than eight miles an hour, and the engine and cars were running at a greater rate of speed than the ordinance allowed. This court held, upon the facts thus stated, that the jury should have been instructed that "taking the plaintiff's evidence and also the defendant's evidence (there being no conflict in the evidence) as true, and the conclusion. could not reasonably be avoided that the plaintiff's intestate by his own negligence contributed to cause the injury." And, further, that "taking all the evidence together, there was nothing which placed the intestate at a disadvantage as regards avoidance of the injury, and when such is the case no recovery can be had where both parties, that is to say, the intestate and the railroad company, were negligent."

The only difference between Neal's case and Lea's case on the one side and our case on the other, is that in those cases the evidence tended strongly to show that the intestate did not

BESSENT V. RAILWAY Co.

see or hear the train, although he could have done so; while in our case the evidence is conclusive that the deceased did know of its approach. The circumstances of themselves are sufficient to show that she did, and, besides, her own words, uttered in reply to a warning from one of the witnesses who was passing her at the time, practically excludes every doubt in regard to the matter. Her death was an unfortunate occurrence, but upon the undisputed facts of this case, the law does not attach any blame to the defendant, but imputes the wrong or negligence, which caused her death, to her own conduct in not avoiding the injury when she could easily have done so.

In the view we take of the case, it is not necessary to consider the other assignments of error.

Judgment Affirmed.

DOUGLAS, J., dissenting. I always regret feeling compelled to dissent from the opinion of the court and especially so when the case might justly be decided the same way upon grounds in which I could concur. I do not question the right of the court to select the grounds of its opinion and my remarks are not intended in the slightest degree as a criticism upon the court, but simply in justification of my own conduct. When the opinion of the court forces upon me the determination of an unnecessary question, well knowing my views upon the matter, it compels me to dissent. The court first decides the case upon the following ground: "We can not infer from the statement in the record that the court intended to direct a verdict peremptorily for the defendant, and the only inference we can draw from the language is that the court would have charged the jury that if they believed the evidence, they should answer the issue as already indicated.” If the opinion had stopped here, it would have ended the Under the circumstances of this case, I would not then have felt compelled to dissent, although I am inclined

case.

BESSENT V. RAILWAY CO.

to think the logical result of the adoption of the rule of the prudent man is to abrogate the old rule, that what constitutes negligence is a question of law. This court has said in Coley v. Railroad, 128 N. C., 534 (542); 57 L. R. A., 817, speaking through Furches, C. J.: "As we understand the question of prudence, and the ideal prudent man, are always a matter for the jury." The court, however, then proceeds to reopen the "irrepressible conflict" by bringing in Neal v. Railroad, 126 N. C., 634; 49 L. R. A., 684. If the first ground taken by the court was correct, then the Neal case has no application whatever. The Lea case, 129 N. C., 455, would have still less. It is proper to state that the court, both in its present opinion and in the Lea case, treat the Lea case as being identical in principle with the Neal case. In other words, it construes the expression, "taking the plaintiff's evidence and also the defendant's evidence," to mean taking the plaintiff's evidence with such of the defendant's evidence as is favorable to the plaintiff. In that case the court says: "So far as we remember, every principle involved in this case is decided in Neal's case, and that case must control this case." While that opinion possessed at least the error of ambiguity, as was pointed out in my dissenting opinion, I presume we must accept this as its proper interpretation. My views were so fully expressed in my dissenting opinion in Neal's case, 126 N. C., 647, that it is needless to repeat them at length. The principle that the court can never direct an affirmative verdict was clearly enunciated by a unanimous court in Spruill v. Ins. Co., 120 N. C., 141. This case has never been overruled or even directly questioned. It was accepted by this court as the invariable rule until the decision in Neal v. Railroad. Even in that case, it was expressly reaffirmed by this court. So we may consider Spruill's case as correctly laying down the general rule, while Neal's case constitutes merely an exception thereto. A brief refer

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