Civil action to recover damages for injury to plaintiff's car caused by a collision with the defendant's train at a grade crossing in South Carolina. The highway intersects the roadbed at right angles, the highway running east and west and the railroad north and south. The train was going south and the plaintiff from east to west. The issues of negligence and contributory negligence were answered "Yes."
Judgment for defendant; appeal by plaintiff. There was evidence for the plaintiff tending to show that the engineer did not give the usual signals as the train approached the crossing, and the plaintiff insisted that this evidence while primarily relevant to the first issue should be considered in connection (359) with the second issue as explanatory of the plaintiff's conduct in attempting to cross the track. In accordance with this contention the plaintiff offered to testify that he would not have gone on the crossing if the signals had been given. We think his Honor properly excluded the proposed evidence. Contributory negligence is such act or omission on the part of the plaintiff, amounting to a want of ordinary care, as concurring and cooperating with the negligence of the defendant becomes the proximate cause of the injury, and is to be determined by existing conditions and not by hypotheses or contingencies. However, the plaintiff testified substantially that if he had known the train was coming he would not have gone on the track — "if I could have seen through the hedge I would not have been on the track." And his Honor presented the plaintiff's contention as follows: "He contends and says that if the engineer, the defendant's agent, had discharged his duty, which it owed to the plaintiff, and rang its bell continuously for 500 yards, and had blown its whistle, that he would have heard it and stopped his automobile before he went on the track, and he says that being so, his automobile would not have been damaged; and he says the *Page 379 cause of this trouble was the negligence on the part of the defendant in failing to do what the law required, sound the whistle 500 yards, or ring the bell continuously for 500 yards before reaching the crossing, and plaintiff says defendant did not do that."
The plaintiff admits that the court gave the instructions to which his third exception relates omitting the clause "There is no evidence of any unlawful act on the part of the plaintiff." The Code of Laws of South Carolina, sec. 3230, provides that if a person is injured in his person or property by collision with the engine or cars of a railroad corporation at a crossing and it appears that the corporation neglected to give the required signals and that such neglect contributed to the injury the corporation shall be liable in damages . . . unless it is shown that, in addition to a mere want of ordinary care the person injured, or the person having charge of his person or property was at the time of the collision guilty of gross or willful negligence, or was acting in violation of the law, and that such gross or wilful negligence or unlawful act contributed to the injury. In Howard v. Payne, 112 S.E. (S.C.) 437, it is held that the terms "gross or wilful negligence" and "unlawful act" are not synonymous, but alternative terms, and they were so construed by his Honor on the trial. There was evidence of gross negligence on the part of the plaintiff, and no contention that he was guilty of an unlawful act. This question was not in issue and it is difficult to see how the omission of all reference to it could have misled the jury. The appellant must show, not only that there was error in the respect complained of, but that such error was prejudicial. Penland v. Barnard,146 N.C. 379; Hosiery Co. v. Cotton Mills, (360)140 N.C. 452.
His Honor first gave the general instruction that it was the duty of the plaintiff before going upon the railroad to look up and down the track and to listen and if he failed to do so and was injured and such failure was the proximate cause of the injury he could not recover, and afterwards the following specific instructions were given: "If you find by the greater weight of the evidence that the plaintiff failed to look up and down the track, if he failed to look up and down, and failed to listen before he went on it, and in his failing to do so he drove on it and the car choked and the train struck it, then he would be guilty of gross negligence and you would answer the second issue `Yes.' if you find that he failed to look and listen and find that if he had looked and listened up and down the track, he could have seen the train, or would have seen it, but in his failure to look and listen, he went on without doing that, and that was the proximate cause of the injury, then you will answer the second issue `Yes.'" *Page 380
The plaintiff impeaches the several instructions on the ground (1) that the court laid down as an arbitrary rule the duty to look up and down the railroad track and to listen before going upon the crossing, and (2) that the court omitted to tell the jury that the plaintiff's negligence must be the proximate cause of the injury.
In support of his exception to the first proposition the plaintiff citesChisholm v. Railroad, 114 S.E. (S.C.) 500, in which the Supreme Court of South Carolina said: "The duty of the traveler arising under the foregoing rule is not an absolute one, but may be qualified by attendant circumstances. The view taken in this State is that it is ordinarily a question for the jury in the application of the standard of due care to say whether the attempt of the traveler to cross without looking and listening effectively was excusable or culpable; that is, whether or not it amounted to negligence or wilful misconduct." But the Court was careful to state conditions or circumstances by which the rule may be qualified: "The facts and conditions which may qualify the duty and excuse the failure to look and listen within the foregoing rules are usually: First, where looking and listening would not have availed to avert the injury; second, where the traveler enters upon the track under an express or implied assurance of safety, as where gates are open or signals are given by watchmen; third, the presence of some imminent danger or emergency, not brought about by the traveler's own negligence; fourth, the presence and influence of unusual or extraordinary conditions, not created or controlled by the traveler himself, and especially where such conditions are brought about by the railway company, which are sufficient to distract and divert the attention of a man of ordinary prudence and self-possession from the duty of looking and (361) listening effectively for an approaching train." And in defining the duty of traveler on approaching a grade crossing the Court was equally explicit: "On reaching a railroad crossing and before attempting to go upon the track, a traveler must use his senses of sight and hearing to the best of his ability under the existing and surrounding circumstances; he must look and listen in both directions for approaching trains, if not prevented from so doing by the fault of the railroad company, and to the extent the matter is under his control must look and listen at a place and in a manner that will make the use of his senses effective."
In accord with Chisholm's case are several decisions of this Court, in which it is held that a traveler must look and listen in both directions for approaching trains if not prevented from doing so by the fault of the railroad company or other circumstances clearing him from blame. Perry v.R. R., 180 N.C. 290; Johnson v. R. R., 163 N.C. 431; Wolfe *Page 381 v. R. R., 154 N.C. 569; Coleman v. R. R., 153 N.C. 322; Strickland v. R.R., 150 N.C. 7; Duffy v. R. R., 144 N.C. 26; Mesic v. R. R., 120 N.C. 490.
The plaintiff resists the application of the instruction complained of on the ground that his view was obstructed by the cane patch and the hedge; but he testified that the distance between the cane patch and the railroad was 138 feet and the distance between the crossing and the hedge row 600 feet, that the car was moving slowly, and that when within 25 or 30 feet of the crossing he "turned his head and turned back looking after his car." In one direction a train could have been seen when a mile away and in the other, when 600 feet away; but instead of looking and listening the plaintiff deliberately turned his eyes from the railroad and recklessly went forward and his car stopped upon the track in front of the oncoming train. His Honor's instruction, when considered with reference to the plaintiff's testimony is a clear and practical application of the principle underlying the uniform decisions of the Court on the particular question presented for consideration.
In our opinion the second objection also is untenable. The instructions, as we understand them, are not contradictory; they would have been if in one paragraph his Honor had said that the plaintiff's negligence must have been the proximate cause of the injury and in another paragraph that such negligence need not have been the proximate cause. But the judge properly instructed the jury at least four times on the question of proximate cause, and in our judgment it would be hypercritical to hold that an inadvertent omission of this feature from a single clause is fatal. The charges it has often been decided, must be considered as a whole, and if when so considered it embodies the law as applicable to the essential features of the question it will generally be sustained. Aman v. Lumber Co., 160 N.C. 369; Hodges v. (362)Wilson, 165 N.C. 323; Bain v. Lamb, 167 N.C. 304; Ledford v.Lumber Co., 183 N.C. 614.
From an examination of the record, the exceptions, and the briefs, we are satisfied that the case has been properly tried, and that there is
No error.
Cited: Holton v. R. R., 188 N.C. 277; In re Southerland, 188 N.C. 327;Pope v. R. R., 195 N.C. 70; Butner v. R. R., 199 N.C. 698; Bullock v.Williams, 212 N.C. 119. *Page 382