FAIRCLOTH, C. J., and CLARK, J., dissenting. After hearing additional argument in this (996) case and after a more thorough investigation of the precedents, we feel satisfied that a new trial ought not to have been ordered when the case was first before the Court, reported 120 N.C. 551. The facts are set forth in detail in the reported case. The second issue was as to whether or not the plaintiff contributed to his own injury. His Honor refused to give an instruction on that issue, which was in these words: "If the jury believe that plaintiff would have been safe, if, after stepping from the Seaboard track, he had stopped in the space between that track and the defendant's track, it was negligence for him to go further and place himself on defendant's track, and the answer to the second issue should be `Yes.'" For the refusal of his Honor to give that instruction this Court granted a new trial. His Honor's ruling ought to have been sustained.
If the plaintiff had been walking at night on the railroad track, on which persons were accustomed to walk at a place not used for such purposes as the railroad company was using the place where the plaintiff was injured, and the plaintiff had been hurt in a collision with a car which was being shoved backwards without a light on the car or without sufficient lights on the streets, or without ringing the bell of the engine propelling the car, he would have been entitled to recover for the injury unless he saw the car or could have seen it and failed to get off the track. The company's negligence in such a case would be continuing and the proximate cause of the injury. But at the place where the plaintiff was injured, a section of A Street, between Fifth and Trade, used by two railroad companies, with four tracks, for receiving their trains, shifting their cars and as a freight depot, the danger to all persons who might go to that point would be increased as a matter of course, and the effect of the former decision in this case was (997) to hold the plaintiff to a greater degree of care because of his presence there at that time. We failed, however, to require on the part of the company a greater and proportionate degree of care in managing its trains there than at other points. In the reported case the Court said: "The use to which the street was put was a standing warning to pedestrians to be most careful when they undertook to walk through it." While that was correct, yet the company ought to have been held responsible for a corresponding degree of increased care for the safety of those persons who might be and who had a right to be in that place of more than ordinary risk.
The trial was properly conducted in all respects below, and the order granting a new trial is revoked. The judgment of the Court below is
Affirmed. *Page 628 Cited: Reid v. R. R., 140 N.C. 150; Morrow v. R. R., 147 N.C. 627. *Page 629