WALKER and BROWN, JJ., concur in the result. The question of defendant's liability on the first issue was submitted to the jury in two aspects:
1. That the train approached the crossing without adequate warning, thereby wrongfully causing the death of intestate.
2. That the crossing was in a defective condition, impeding the progress of the car, and that this was a contributing and proximate cause of the killing.
There was evidence on the part of plaintiff tending to establish the first proposition, and it was proper, therefore, to submit the issue to the jury; but on careful consideration of the record we are of opinion that there were no facts in evidence tending to establish negligent default as to second position, and, for this error, defendant is entitled to a new trial of the issues. In this respect, there was evidence tending to show that, just before the accident, one or two days, the track at this crossing having become depressed or sunk in, the section master of defendant company and his assistants had raised the track at this crossing some eight inches, put new crossties under it and filled it in with cinders, allowing this to settle overnight; they returned in the morning and filled it up again, and there had been a lot of passing over it during the day with vehicles and machines, having a tendency to pack it. This witness testified that he regarded cinders as about the best (444) thing that could be used for making a good crossing, and that he always used them for that purpose when they could be had. True, another witness testified that he thought plank or fine rock would make a better crossing, but the witness also said that he had had no experience in repairing crossing, and on perusal of the entire testimony we find no sufficient evidence to carry the question to the jury of any negligent *Page 514 breach of duty on the part of the company in reference to the condition of the crossing, either as to the material or the manner in which it was applied, and there was, as stated, prejudicial error in allowing the jury to consider the case in that aspect.
And it was proper, also, to submit to the jury the question of contributory negligence on the part of the intestate. There was evidence tending to show that the driver of the automobile looked and listened before entering on the crossing, and it is held with us that it is not always, and as a matter of law, required that a vehicle should come to a stop before endeavoring to cross. Shepard v. R. R., 166 N.C. 539, andElkin v. R. R., 86 S.E. 762.
Furthermore, it is held by the great weight of authority that negligence on the part of the driver of an automobile will not, as a rule, be imputed to another occupant or passenger unless such other occupant is the owner or has some kind of control over the driver. This is undoubtedly the view prevailing in this State. See a learned opinion on the subject by AssociateJustice Douglas in Duval v. R. R., 134 N.C. 331, citing Crampton v. Ivie,126 N.C. 894, both of these decisions being approved in the more recent case of Baker v. R. R., 144 N.C. 37-44. And see, also, a valuable article on the subject in 2 Ruling Case Law, secs. 42 and 43, in which the position is also stated with approval, and Non v. R. R., 232 Ill. 378. There is nothing in the case of Bagwell v. R. R., 167 N.C. 611, that in anyway militates against this position. On the contrary, the principle announced in Crampton v. Ivie is there expressly approved, and the verdict and judgment in favor of the railroad was sustained on the ground that, under the charge of the court, the jury had necessarily negatived any negligence on the part of the defendant.
On the second issue, the case seems to have been submitted in recognition of the principle, and, on the record as it now stands, we find no error in the way the case was presented to the jury on that issue. But for the error as to the defective crossing defendant is entitled to a general new trial, and the same is ordered on all the issues.
New trial.
WALKER and BROWN, JJ., concur in the result.
Cited: Brown v. R. R., 171 N.C. 270 (2g); Dail v. R. R., 176 N.C. 112 (2f); Perry v. R. R., 180 N.C. 296, 297 (2f); Parker v. R. R., 181 N.C. 103,105 (3f); Pusey v. R. R., 181 N.C. 142 (3f); Tyree v. Tudor, 183 N.C. 346 (3f); Williams v. R. R., 187 N.C. 351 (3f); S. v. Trott, 190 N.C. 677 (3l); Smith v. R. R., 200 N.C. 182 (3f); Dillon v. Winston-Salem,221 N.C. 520 (3b). *Page 515
(445)