The Court charged the jury among other things:
"(a) If you find from the evidence that plaintiff kept a lookout (767) as he approached the track, pulled his horse down to a walk before reaching the track and some fifty yards before reaching it, and listened and looked for the train as he approached the track, and not seeing or hearing any, and then started to drive across the track and was injured, there is no contributory negligence and you will answer the second issue `No.' (b)."
And to so much of the charge as is between (a) and (b) defendants excepted.
Among other instructions prayed for by defendant were the following:
"5. If the plaintiff could have seen the approaching train by looking, in time to have averted the injury, and did not see it, it is the same as if he had not looked, and the answer to the second issue should be `Yes.'"
This instruction was refused and defendant excepted.
"7. It was the duty of plaintiff both to look and listen and to see and hear, if he could have done so, and if he failed in any of these requirements the answer to the second issue should be `Yes.'"
This instruction was refused and defendant excepted.
"9. If the jury should believe from the evidence that defendant was running its train without ringing the bell and without a light on the front end of the leading car, and at an excessive rate of speed, still if *Page 478 the plaintiff could have avoided the injury by the use of reasonable care he can not recover and the answer to the second issue should (768) be `Yes.'"
This instruction was refused and defendant excepted.
"The jury found all the issues in favor of the plaintiff and assessed his damages at six hundred and fifty dollars ($650)."
There was judgment for plaintiff upon the verdict and defendant appealed, assigning as errors:
"1. That the Court charged the jury as noted in defendant's first exception.
"2. That the Court erred in refusing to give defendant's instructions marked 5, 6, 7 and 9." The exception to the charge, and the first three exceptions for refusal to charge, present substantially the same proposition — that, though the plaintiff looked and listened, and did not see nor hear the approaching train, yet, if he might have done so, it is contributory negligence. If by this it was proposed to ask the Court to charge that the plaintiff was not excused if he looked and listened carelessly and negligently, this should have been pointedly and plainly asked. Besides, it was covered substantially by the charge given, that "it was the duty of the plaintiff to use ordinary and reasonable care to avoid accident, and to exercise his senses of hearing and sight, to keep a lookout for approaching trains, and if he did not, and drove inattentively on the track, without keeping a lookout or listening for approaching trains, it is (769) contributory negligence." This charge, repeated three times in different phases, was really erroneous towards the plaintiff (the appellee), in that it makes him guilty of contributory negligence for not looking and listening in all cases, even if no light was on the front end of the moving train (at night), and no bell rung. Yet, if such was the case (and the plaintiff both alleged it was and offered proof of it), the failure of the plaintiff to look and listen at a crossing was not contributory negligence. Hinkle v. R. R., 109 N.C. 472; Russell v.R. R., 118 N.C. 1098.
But we do not understand the defendant to complain that the jury was not instructed that the looking and listening must be done with proper care, but this proposition is that, if the plaintiff looked and listened and might have seen or heard and did not see or hear, as a proposition of law he did not look and listen. That, however, is a matter of fact, and not a proposition of law. By "looking and listening" the jury must have understood, under the terms of the charge, "looking and listening with *Page 479 proper attention." The syllogism of the defendant is something like this: "Though 3 plus 4 are 7, yet, if they make 8, they are not 3 plus 4." True enough, but the question of fact is whether there was "3 plus 4," and that determines whether the sum is 7 or not. The defendant is traveling in a circle. If the plaintiff looked and listened with care, he saw or heard the approaching train if he could have done so; and if he did not see and hear it, when he might have done so, then he did not with proper attention, look and listen. Pickett v. R. R., 117 N.C. 616, and several cases since have settled that, though an engineer does not see a man lying on the track, the company is liable, if with reasonable care the engineer could have seen him in time to avoid injury. But that is based on the engineer's negligence in not keeping a proper lookout. Here the Court told the jury that the plaintiff was guilty (770) of contributory negligence if he went on the crossing without keeping a proper lookout and listening. If the engineer keeps a proper lookout, and is unable to see the man lying on the track till too late to avoid injury, there is no negligence on his part and no liability on the company.
The only other exception is that he Court did not give an instruction asked that, though the defendant was running its train (backward on a dark night) at an excessive speed, and without ringing the bell, and without a light on the front end of the leading car, still, if the plaintiff could have avoided the injury by the use of reasonable care, the jury should find him guilty of contributory negligence. This was in substance given by the Court in its charge on the second issue, in stating the duty of the plaintiff to stop, look, and listen before attempting to cross. And in so doing, there was error as against the appellee as already pointed out, by not qualifying it by adding, as in Hinkle v. R. R., and Russell v. R. R.,supra, that the plaintiff would not be guilty of contributory negligence in going upon the railroad crossing without looking and listening, if the defendant did not sound the whistle or ring the bell, or in the night time did not have a light on the front end of the train, the proximate cause in such cases being the failure to give warning. It is not negligence in a traveler to cross the track, unless he disregards a warning not to cross, which he might have seen or heard with proper care.
Cited: Mesic v. R. R., 120 N.C. 491; McIlhenny v. R. R.. ib., 554;Purnell v. R. R., 122 N.C. 847; Norton v. R. R.. ib., 936; Edwards v. R.R., 132 N.C. 101; Cooper v. R. R., 140 N.C. 213, 225; Gerringer v. R.R., 146 N.C. 34; Osborne v. R. R., 160 N.C. 313; Shepherd v. R. R.,163 N.C. 522; Powers v. R. R., 166 N.C. 601; Horne v. R. R., 170 N.C. 651. *Page 480
(771)