FAIRCLOTH, C. J., and CLARK, J., dissent. Plaintiff's intestate was run over and killed by a freight train of the defendant company, and this is an action for damages.
There was evidence tending to show that defendant has, and maintains a large shed, 275 feet long and 80 feet wide in the thickly settled and the business part of the town of Weldon; that under (834) this shed there are as many as five railroad tracks, and the trains *Page 520 and cars of four different roads pass under and through this shed; this shed was used as depot for these different roads, where they received and discharged their passengers, and was a place of general resort for the inhabitants of the town, and all other persons; that on the night of 18 October, 1895, about 9:30, when the passenger train of the Atlantic Coast Line (this being one of the roads that used and occupied the shed) was leaving, the defendant company backed a freight train under this shed, which ran over and killed the plaintiff's intestate; that it was dark under this shed, which was not lighted except from lamps of the "Coast Line Hotel" and the Coast Line mail and passenger train, composed principally of "sleepers," which gave little or no light, and which was between the hotel and the defendant's freight train that killed the intestate of plaintiff, and such light as was reflected from some building across the street on the opposite side of the shed from the "Coast Line" Hotel; that defendant's train was due at 5:30 but was belated until 9:30, and was being pushed backwards at a speed of not more than four miles an hour and the intestate had been on the track but a few minutes when he was run over and killed.
The plaintiff contended that there was no light or lantern displayed from the front end of the leading car of the backing train, and that there was no one there acting as flagman or signalman, in charge of the backing train, as there should have been.
(835) For the purpose of proving these allegations, the plaintiff introduced several witnesses who testified that they were there; that it was dark; some of them say it was very dark and they saw no light, nor did they see any one on the car with a light or lantern.
With this evidence, the plaintiff rested his case, and the defendant moved to nonsuit him under chapter 109, Laws 1897, contending that the plaintiff had not made a prima facie case; that, taking everything to be true, the plaintiff's evidence proved or tended to prove that plaintiff had failed to show negligence on the part of defendant.
The Court refused the motion to dismiss and the defendant excepted, and then proceeded to introduce evidence, and the trial proceeded to verdict and judgment against the defendant.
The defendant contends, now, that the judge erred in not dismissing the plaintiff's action at the conclusion of this evidence in chief, and insists that he is entitled to have the Court reviewed upon that motion. The plaintiff contended that the Court committed no error; that he is not so entitled, and this brings the construction of this statute before us for the first time.
As we understand the practice of the courts before this statute, the defendant might make this motion, but if the Court refused it and the defendant offered further evidence, he lost the benefit of that *Page 521 motion. The motion could be renewed at the close of the evidence in the case, but would then depend upon the whole evidence offered in the case.Sugg v. Watson, 101 N.C. 188.
To give this statute the construction contended for by the plaintiff, would be to make it meaningless, and to leave the law as it was before its passage. This we cannot do. Whether its enforcement will tend to the advancement of justice or to the economy of time, (836) is not for us to say.
The rule it has changed is one of long standing, with the approval of this court. But it was within the province of the Legislature to change it, and in our opinion it has done so. We must, therefore, hold that the defendant has the right to have the ruling of the Court reviewed upon the state of the case as it existed at the time the motion was made.
This brings us to a review of the judge's ruling in refusing the defendant's motion to dismiss the plaintiff's action at the close of his evidence in chief.
This motion is substantially a demurrer to the plaintiff's evidence. And this being so, and the Court having no right to pass upon the weight of evidence, every fact that plaintiff's evidence proved or tended to prove must be taken by the Court to be proved. It must be taken in the strongest light, as against the defendant.
Then the plaintiff's evidence proved or tended to prove that the defendant kept and used a shed 275 feet long and 80 feet wide, under which there were five railroad tracks, used in common by defendant with three other railroads; that this shed was the depot for all these roads in receiving and discharging their passengers; that it was not lighted by the defendant, and that it was dark under this shed; that it was a place of common resort for the inhabitants of the town and all other person; that there was a frequent pass-way across the railroad tracks under this shed, which was used with the knowledge and consent of the defendant; that defendant's train that killed the intestate of plaintiff was not on schedule time — was due at 5:30, but did not arrive until 9:30, when the intestate was killed; that this train was backing under this dark shed at a rate of speed not greater than four miles an hour, without light, or flagman, or signalman on the (837) front of the leading car of the backing train.
It is true that it was contended by the defendant that plaintiff's evidence failed to prove — to establish — the fact that there was no light and no flagman on the front of the leading car; that plaintiff's witnesses only testified that they were there, that it was dark, and they saw no light or flagman. This was negative but competent evidence. Henderson v. Crouse, 52 N.C. 623. This evidence was competent and not *Page 522 objected to. It was evidently introduced for the purpose of showing — proving that defendant had no light or flagman on the car. If it did not prove this, nor tend to prove it, it was incompetent and should have been objected to by defendant. But if it tended to establish the fact, could the Court say that it did not do so? If it did tend to do so — and this proposition seems too plain to call for authority or argument — it was then no longer a question for the Court, but an issue for the jury — the Court has no right to pass upon the weight of evidence. Sugg v.Watson, supra.
We have not said and do not say that the evidence introduced by plaintiff established negligence in the defendant. It is not necessary, in the consideration of the judge's ruling upon the defendant's motion to dismiss, that we should do so.
But we say the evidence tends to establish the facts as we have stated them, and it then became an issue of fact for the jury and not a question for the Court. There was no error in refusing defendant's motion to dismiss under the act of 1897.
The discussion of this case so far has been as to the duty of the Court under Laws 1897, chapter 109. The discussion has involved (838) the question as to defendant's negligence. But the question as to whether the plaintiff's intestate was guilty of negligence or not, has in no wise been discussed.
We have seen that there was evidence tending to show negligence on the part of defendant at the close of the plaintiff's evidence.
And it is insisted by plaintiff that there was much more, going to show defendant's negligence, at the final close of the evidence, than there was at the time the defendant moved to dismiss under the act of 1897.
The burden of the issue as to defendant's negligence was on the plaintiff. But whenever the evidence tended to show negligence on the part of the defendant, it then became an issue to be found by the jury under proper instruction from the Court. The jury has found this issue against the defendant, and it must stand unless there has been improper evidence allowed to the prejudice of defendant, or the Court has given the jury improper instructions, or has failed to give proper instructions asked by defendant.
The burden of establishing the second issue, "Did the negligence of the plaintiff contribute to cause the injury?" was upon the defendant. The jury has found this issue against the defendant, and it must stand unless the court has committed error in the charge or in admitting or refusing evidence.
The prayers of defendant for instructions, and exceptions to the charge, and for failing to give instructions asked, are so numerous — *Page 523 many of them involving the same questions of law — that we will not undertake to give each a separate treatment. This fact is recognized by the learned counsel for defendant in their well considered brief, as they only discuss the 4th, 5th and 6th exceptions, found on pp. 50, 51, 52 of the printed record, and one other exception as to evidence on p. 45. (839)
The principal exception discussed in defendant's brief is the exception to the following paragraph of the judge's charge, which in substance covers all the exceptions to the charge:
"Again, if the train was backing under the shed without displaying the light from the front end of the leading car and without having a flagman stationed thereon, and was backing without due care and the intestate knew it and placed himself in a position of danger, his negligence was the proximate cause of the injury — he had the last chance to avoid the injury — and this being so, he and not the defendant would be responsible for his death. On the contrary, if Purnell was standing on or near the track he was not called upon to look out for a backing train which displayed no light and had no flagman, if you should so find, on the front of the leading car, for it was the duty of the defendant, as before explained, to display the light and have a flagman at his post, he not being bound to expect a violation of duty. If, therefore, he, (Purnell), was standing on or near the track and the defendant backed its train under the shed without the light on the front end of the leading car, or in a conspicuous place thereon, or without a flagman thereon, and if the jury should further find that Purnell did not discover the train in time to escape, then the defendant was negligent, and such negligence was the cause of the injury."
The criticism upon the charge is twofold — that it charged the jury that there must have been a light in the hands of one person, or held by some other means, and also a separate person acting as flagman or signalman of the moving train. Whatever effect this exception might have, if true in fact, we are not called upon to say, as in our opinion a fair interpretation of the charge does not mean this. (840) As we understand the matter, there must be both a man and a light at night, and a man and a flag in day. It may be one person but he must have a light, and this is what we understand the judge to charge.
This man, called a flagman, is in control of this backing train. This train is moved and stopped at his direction. This is done in the daytime by the use of a flag, and at night by the use of the light. By these means he informs the man in control of the engine when and how to move the train. At night, the light is used not only for the purpose of signaling the movement of the train, but also to enable the *Page 524 flagman to look out for danger and to give notice to all persons of the approach of the train. This is regarded so essential to the safe operation of the road, that the defendant has adopted a rule to this effect, which it has had printed in a book of instructions and made a part of the evidence in this case.
This charge was given as applicable to the facts in this case, of a train backing under this dark shed, a public thorough fare, four hours late, and at a time when the passenger train on one of the other roads was just leaving.
To hold that it could thus back in, without light or flagman, would be to overrule Lloyd v. R. R., 118 N.C. 1010, and authorities there cited.Stanley v. R. R., 120 N.C. 514; Mesic v. R. R., 120 N.C. 489.
The other portion of this exception is pointed out as follows: "Defendant further excepts to so much of the foregoing paragraph as holds that, if intestate was standing on or near the track and defendant backed its train under the shed without the light on the front end or in a conspicuous place thereon, or without a flagman, etc., the defendant was (841) negligent, and such negligence was the cause of the injury."
It will be seen that defendant in pointing this exception has left out of the charge quoted the following sentence, "And if the jury should further find that Purnell did not discover the train in time to escape, then the defendant was negligent." This it seems to us makes a material difference in the charge, and especially so when taken in connection with the following paragraph, which comes after that excepted to, and which is as follows:
"If the jury should find that Purnell was standing on or near the track and knew that defendant's train was backing under the shed with or without lights, or with or without a flagman, then he was bound to look out for his own safety and the jury should answer this issue, yes. Again, if you should find that the train was backing with its light and flagman in position, though the plaintiff's intestate did not know it, it was his duty to be on the lookout for all trains that had proper lights and signals, and if he failed he was negligent, and your answer to this issue should be, yes."
The lines between what is negligence and what is not, and what is contributory negligence and what is not, are sometimes so dimly drawn that it is hard to keep from crossing them. But, taking the whole charge in this case (set out in full in the record), we find it full, clear, and distinct to a degree sometimes not attained in cases of so much complication, and it appears to us to be entirely fair to the defendant.
This disposes of the case, except as to the evidence of some one that measured the car and gave his opinion, and the evidence of the sister of the intestate that the deceased was there to meet some one he *Page 525 expected on the train. We are not able to see that this evidence did (842) or could have influenced the finding of the jury. The judgment is
Affirmed.