to watch for approaching trains, but had a right to believe the laborers upon the cars, or engaged in removing the loose grain, would not be disturbed without proper notice. The jury might well have believed that he was on the track in the performance of his duty, and in the exercise of all the care to be expected of a prudent man. If rightfully in the place of danger, it is not contended that he had any opportunity to escape. The case is quite distinguishable from those cases where it has been held that the disclosure of the facts has been so limited, that there could be no fair inference that a plaintiff was in the exercise of due care, or that the evidence was equally consistent with care or negligence on his part. If the only negligence of which the deceased could have been guilty must have been that he was on the track with no rightful purpose, or under such circumstances that a prudent man would not have been there, and if the evidence and the inferences to be drawn from it tend to show affirmatively otherwise, the issue of due care may be sustained. Without undertaking to examine in detail the numerous cases cited by defendant, that upon which it principally relies is Hinckley v. Railroad Co., 120 Mass. 257. But that case does not sustain the defendant's contention. It was one where evidence was necessary in order to show what was the conduct of the party injured, in regard to circumstances especially requiring care on his part. Without this, it could not be determined whether he was or was not in the exercise of due care, and no such evidence was offered. It was said not to differ substantially from a case where the party injured might have been found lying on the ground, having been knocked down by a passing car on the railroad track; there being no evidence as to what his own conduct had been. Hinckley, who attempted to cross a side railway track in order to reach the station on the other side, as he approached a place known as "Murphy's Corner," on his way thus to cross, had a view of the railway track for one hundred and fifty feet; and as he reached the track, it could have been seen by him for the distance of half a mile. One Basset, who was some fifteen or twenty feet behind him, stopped at "Murphy's Corner," and saw the car detached from the train, on the main line, which subsequently struck Hinckley. He called to Hinckley, but was probably not heard on account of the wind. It did not appear that Hinckley, either at "Murphy's Corner," at any intermediate point, or when near the track, and about to cross, exercised the precaution of looking to see whether any thing was approaching. No circumstances were shown which justify him in neglecting the usual and necessary precautions of those who are about to cross a railroad track, upon which a train or a car might be approaching. In the utter absence of evidence as to what Hinckley did

after the time when his conduct became a matter of importance, it was impossible to infer that he had exercised the care and circumspection properly to be demanded of him. The case at bar differs from that class of cases in which it is necessary to show some positive act on the part of the plaintiff in order to prove that he was in the exercise of due care. The plaintiff's intestate had a right to believe, if engaged in any labor connected immediately with unloading the cars, that he would not be interfered with by a reckless incursion of the trains of the defendant.

We are therefore of opinion that the inquiry whether the plaintiff's intestate was in the exercise of due care should have been submitted to the jury. The evidence objected to by defendant and received by the learned judge, that at other times the deceased had swept the loose grain, was competent, as showing the character of his employment. New trial granted.

TROY

ບ.

CAPE FEAR & Y. V. R. Co.

(North Carolina Supreme Court, April 2, 1888.)

Trespasser. - Permission of the Company, A railroad company having by long consent allowed the public to pass and repass along a trestle, persons doing so are not trespassers.

Same. Contributory Negligence. — Liability of Company. — Notwithstanding the contributory negligence on the part of a trespasser who exposes himself to danger of injury, if by the exercise of reasonable care and diligence on the part of the company and its servants an accident might have been avoided, the company is liable for injuries sustained by such trespasser.

Same. Conflicting Testimony. Verdict. In an action by an administrator against a railroad company for wrongfully causing the death of plaintiff's intestate, the evidence on behalf of plaintiff tended to show that the intestate was walking over a trestle where the public had been allowed to pass and repass for many years; that defendant's construction-train came along very slowly, without giving any notice by sound of whistle or bell, and without any headlight; that it made little noise; that the track was straight for a considerable distance; that, when the deceased saw the train approaching, he tried to get over the trestle and could not, and then tried to get off, and got. his foot hung; that deceased was sober at the time of the accident; and that the engineer had defective eyesight. The evidence for the defendant was to the effect that the planks had been put on the trestle for the use of its employees only; that there was a notice at a gate, "No admittance; "that the intestate was inside the gate and was drunk at the time; that he had been warned against going upon the track; that he was lying down; that the

engineer was competent; and that the headlight was burning. Held, that there was sufficient evidence of negligence on the part of the company to justify the court in refusing an instruction; that if the jury believed the evidence introduced by plaintiff, and the uncontradicted evidence offered by defendant, they would find that deceased was guilty of contributory negligence.

APPEAL from Superior Court, Cumberland County.

Action to recover damages for the negligent killing of the plaintiff's intestate. The opinion states the case.

T. H. Sutton for plaintiff.

G. M. Rose for defendant.

DAVIS, J. Civil action, tried before Clark, J., at May term, 1887, of the Superior Court of Cumberland County, to recover damages for the alleged negligent killing of Thomas McDonald, the intestate of the plaintiff. It is alleged and adFacts. mitted, that on or before the night of Oct 19, 1883, Thomas McDonald was run over while on the defendant's track in the town of Fayetteville. The plaintiff alleges that his intestate was walking on the defendant company's track at the time of the injury, at a place where "it was, and for a long time had been, the habit and custom of the people of the town of Fayetteville, and others, to pass and repass and cross the track of defendant's road, and that, while so walking on the said road, he was run over by the carelessness and negligence of the defendant's servants in charge of a locomotive engine, and received injuries from which he soon thereafter died. The defendant denies negligence, and says that the plaintiff's intestate was a trespasser, and had no right to be on defendant's track; that he was a man of dissolute habits, frequently in a state of intoxication, was in that condition on the night of the injury, and was himself guilty of gross negligence in going on defendant's track in that condition; and that he was lying down, and in such a position that he could not be seen by the engineer when the accident occurred. The following issues were submitted: "(1) Was the death of plaintiff's intestate caused by the negli gence of the defendant? (2) Was the plaintiff's intestate guilty of contributory negligence? (3) What damage is the plaintiff entitled to recover?" Many witnesses, thirty in number, were examined on the trial below; and the substance of their testimony was sent up with the case on appeal. As there was no exception to any of the evidence by the appellant, we deem it unnecessary to set it out in detail, but only to state, substantially, so much of it as is necessary to a proper apprehension of the exceptions to his honor's charge. The tendency of the plaintiff on that behalf was to show that there is a crossing on a trestle of the defendant's road upon which planks are placed, and that over this

trestle the public have been accustomed to pass and repass for twenty or twenty-five years, using it as a common passage-way. That on the night of the 19th of October, 1883, between eight and nine o'clock, the plaintiff's intestate (McDonald) was crossing over the trestle, when the construction-train of the defendant came into the town of Fayetteville, running slowly, not faster than three or four miles an hour, without giving any notice by sound of whistle or bell, and without any headlight. That it made so little noise, that some of the witnesses thought that it was only a hand-car. That it sounded no alarm at the crossing, and that no whistle was blown or bell rung from Little River to Fayetteville. That the track was straight for a considerable distance; and when the intestate saw the train approaching, "he tried to get across the trestle and could not, and then tried to get off, and got his foot hung." That he said he "saw the damned thing coming, and tried to get out of the way, but could not." That he made an outcry and sound of distress, which could be heard at considerable distance, according to one witness, 800 or 900 yards. That the train was going slowly, and could have been stopped within 10 feet. That, if the bell had been rung at the crossing, the intestate would have had ample time to have gotten off. One witness (Smith) testified that he heard the distressing cry, got a lantern and waved it; that, "if the engine had blown at the corporation limits, he would have had time to release McDonald; that he started as soon as he heard the outcry." That the engineer was incompetent, "blind in one eye, and could not see well out of the other." That the intestate was an industrious man, and a skilled laborer, worth one dollar per day. That he sometimes drank, but was not a drunkard. That he was sober at the time of the accident. That he was fifty-five or sixty years of age, and in good health. On behalf of the defendant, the evidence tended to show that the planks on the trestle were put there by defendant, not for public use, but for the employees of the road when engaged about its business; that the defendant owned the property, and there was a public notice at the gate, "No admittance except on business; that McDonald was inside the gate, was drunk on the occasion of the accident; that he was in the habit of going on the track intoxicated, and had been warned not to do so; that he was lying down; that, if he had been standing up, he could have been seen; that he himself said that, "if he had not been drinking, he would not have been caught there;" that he was drunk the evening of the accident, so much so that he "could hardly keep his feet;" that Wright was a competent engineer, and had always been trusted. Wright, the engineer, testified that the headlight was burning; that he did not know whether the bell was rung or not;

Instructions

to jury.

-

that, "if a man had been standing up, he could have seen him 300 yards. Saw no man.' He afterwards said that the "bell rung at the crossing. Heard cry about 100 feet off, - cry of distress." The court charged the jury, that as to the first issue, if the accident was caused by negligence of defendant, the jury should answer "Yes," otherwise "No;" and that the burden was on plaintiff to show negligence. That if train was moving three or four miles an hour, defendant not being at a crossing, it was not negligence not to ring the bell or blow the whistle, unless such failure is shown to have contributed to the injury. Parker v. Railroad Co., 89 N. C. 222. It would have been negligence if there had been no headlight, since, by the uncontradicted evidence, the track was straight for half a mile; but if there was a headlight, it was sufficient warning to deceased, and there could have been no negligence in failing to ring bell or blow whistle. That if the agent or engineer of company had notice, from the outcry or otherwise, that a human being was fastened on the track, it was negligence not to stop his train, if he had time to do so after receiving such notice; that is, if he received the notice at all. As to the second issue, the court charged, the failure of engineer to sound whistle or ring bell, if such were the fact, did not relieve deceased from necessity of taking ordinary precautions for his safety. Negligence of company's employees in that particular was no excuse for his negligence. He was bound to look and listen before attempting to cross the trestle, in order to avoid an approaching train, and not to walk carelessly into a place of danger. Had he used his senses, he might have heard or seen the coming train. If he omitted to do so, and walked thoughtlessly and carelessly on the track, he was guilty of culpable negligence, and contributed to his own injury. If he did use his senses, saw the train coming, or heard it, and yet undertook to cross the trestle instead of waiting for train to pass, and was injured, the consequences of the mistake cannot be cast on the defendant. No railroad company can be held for a failure of experiments of that kind. Parker v. Railroad Co., 86 N. C. 228. But, notwithstanding the previous negligence of deceased (if the jury so find), if at the time when the injury was committed it might have been avoided by the exercise of reasonable care and prudence on part of defendant, the defendant is liable, and the jury would find second issue in favor of plaintiff. Davies v. Mann, 10 Mees. & W. 545, as cited in Gunter v. Wicker, 85 N. C. 312. The court further instructed the jury, that they were the sole judges of the facts, and the court had no right to intimate any opinion as to the weight of the testimony, or as to whether any fact was proven or not; that the jury were to find