ALLEN, J., concurring: CLARK, C. J., dissenting: HOKE, J., concurring in the dissenting opinion. After stating the case: The evidence must be considered in the view most favorable to the plaintiff.
This Court has held so frequently as to have made it an axiom of the law that a person using the track of a railroad company for a footway, whether as trespasser or licensee, does so subject to the undoubted and superior right of the railway company to have the unimpeded use thereof for the operation of its trains, while serving the public in transporting passengers and freight. It is bound by the law to receive passengers and freight and to carry them, by the exercise of care and diligence, to their destination, and, therefore, it is not so much the railroad company which is thus favored and preferred by the law over a trespasser and licensee walking on or dangerously near its tracks, as the *Page 664 public, although the railroad company has, independently, rights and privileges with respect to its tracks and rights of way which are not permitted by the law to be abridged in order to accommodate those who for their own convenience and at their own will and pleasure use them as footways. By reference to the numerous cases upon this subject which have been decided by this Court it will be seen that it has been held positively, unequivocally, and uniformly by us that the principle which gives to the railroad company, while serving the public, this superior and exclusive right to the use of its tracks and its right of way is not in the least modified by anything having reference to the speed of the train.McAdoo v. R. R., 105 N.C. 140; High v. R. R., 112 N.C. 385; Abernathyv. R. R., 164 N.C. 91; Ward v. R. R., 167 N.C. 148, and cases therein cited, or to the fact that it was accustomed to run at a certain speed, nor because it was contrary to usage or custom to run on Sunday, if such was the fact in this case.
A railroad company is not under any legal obligation to regulate the rate of speed of its trains for the convenience of those using its (585) right of way, for its tracks are always places of danger, and the pedestrian, who can easily step aside and avoid any danger, should do so on the approach of a train. He cannot require the company to slow up any more than to stop. He must look out for trains and take care of himself, and the engineer has the right to suppose that he has done so, or that he will do so in time to save himself. He must expect trains at all times, for he does not control the schedules of the company, and, besides, it has the right to run extra trains and to use its tracks for its purposes at any hours it chooses in the transaction of its business as a public carrier, and cannot be lawfully obstructed or impeded in the prosecution of this right or prevented from its free and full exercise in order to take care of those who go upon its property as trespassers or as licensees, who are there by sufferance only. It must not willfully or heedlessly injure them; but as they are not invited upon the right of way in any sense other than that the railroad company had not taken steps to prevent its use by them as a footpath, they are required to look out for their own safety.
Justice Avery, speaking for the Court in High v. R. R., 112 N.C. 385, said: "Whether he saw the plaintiff at a distance of 150 yards or of 10 feet, he was not at fault in acting on the supposition that she would still get out of the way. It is not material whether the train was moving fast or slow in such a case as this. For present purposes the relative condition of the parties would have been the same had the engine been moving 50 miles an hour and had she been discovered on the track at a distance that would be traversed in the same time that would have been consumed in going 10 feet at the rate of 10 miles an hour, unless *Page 665 additional liability should have been incurred by running so fast in a populous town." And again, in the same case: "If the plaintiff had looked and listened for approaching trains as a person using a track for a footway should in the exercise of ordinary care always do, she would have seen that the train, contrary to the usual custom, was moving on the siding. The facts that it was a windy day and that she was wearing a bonnet, or that the train was late, gave her no greater privilege than she would otherwise have enjoyed as licensee, but, on the contrary, should have made her more watchful." He then goes on to say that as the woman was apparently is possession of her normal faculties, and her natural senses of sight and hearing, there was nothing which required the engineer to depart from the usual rule, that the servant of the company is warranted in expecting that trespassers or licensees, seemingly of sound mind and body and in possession of their senses, will leave the place of danger till it is too late for him, by stopping the train or slackening its speed, to prevent a collision, citing especially in support of these propositions, so thoroughly established in our law, the cases of McAdoo v. R. R., 105 N.C. 140; Meredith v. R. R.,108 N.C. 616, and Norwood v. R. R., 111 N.C. 236. In other (586) words, it was held that if the mental and physical condition of the person on the track is such as to indicate that he is capable of caring for himself, the engineer is under no duty or obligation to take care of him by even slowing down his engine; and Justice Avery, in High's case, distinguishes from it those of Deans v. R. R., 107 N.C. 686 (where the man was lying apparently helpless on the track); Bullock v. R. R.,105 N.C. 180 (where the horse and wagon had stalled on the track and a signal given to stop), and Clark v. R. R., 109 N.C. 430 (where the party was handicapped by being on a trestle); but in all cases where the person on the right of way is not helpless, or disabled in some way, the above rule applies with its full force.
In Abernathy v. R. R., 164 N.C. 97 and 98, the Court, quoting, in part, from and approving Glenn v. R. R., 128 N.C. 184, said: "The railroad track itself was a warning of danger, made imminent by the approaching train. It was then his duty to keep his `wits' about him and to use them for his own safety. He knew or ought to have known that he was a trespasser, and it was his duty to have gotten out of the way of the train. The defendant was under no obligation to stop its train at the sight of a man on its track. . . . It was apparent to the engineer that the plaintiff was in full possession of his faculties and could take care of himself, and the engineer had the right to presume that he would leave the track in time to avoid the injury. `That he did not do so was his own fault, and he should suffer the consequences of his folly.' The doctrine of the cases already cited and decided in this *Page 666 Court has been firmly established in other jurisdictions, and notably in R.R. v. Houston, 95 U.S. 697, where it is said that a person using the track of a railroad company must look and listen, and any failure to do so will deprive him of all right to recover for any injury caused thereby." A party cannot walk carelessly and blindly into a place of danger, and hold any one but himself to blame for the resultant injury. It was also said, in that case, that the plaintiff, as here, was in full possession of his faculties and able to take care of himself, and the engineer, therefore, had the right to presume up to the last moment, when it was too late to save him, that he would leave his dangerous position in time to avoid injury to himself, and that he did not do so was his own fault, and he should suffer the consequences of his folly. Volenti non fit injuria.
There are so many cases to the same effect, which have been decided in this Court, that it would be useless and tedious to review them, and we will content ourselves with merely citing them, except one or two of recent date. Parker v. R. R., 86 N.C. 221; McAdoo v. R. R., supra;Meredith v. R. R., supra; Norwood v. R. R., supra; High v. R. R., supra; Syme v. R. R., 113 N.C. 558; Bessent v. R. R., 132 N.C. (587) 934; Stewart v. R. R., 128 N.C. 518; Wycoff v. R. R., 126 N.C. 1152; Sheldon v. Asheville, 119 N.C. 606; Beach v. R. R.,148 N.C. 153; Lea v. R. R., 129 N.C. 459; Morrow v. R. R.,147 N.C. 623; Treadwell v. R. R., 169 N.C. 694.
The recent cases of Abernathy v. R. R., 164 N.C. 91, and Ward v. R.R., 167 N.C. 148, have fully affirmed all of the principles settled by the above authorities. They are specially mentioned here, and in this connection, as in both of them, it was contended by the plaintiffs therein that they were on that part of the right of way where they did not expect trains to come at the time they were injured, and that this fact varied the rule; but this Court held, contrary to that view, that such a place is always one of danger, as the company has the right to the free and unimpeded use of its tracks, at all times, for its regular or extra trains, and that outsiders must keep off, or, if they insist on using the right of way for their own purposes, they must take care of themselves. It was further said, following a court of the highest authority, that under such circumstances the right of way itself is a place of danger, as it seems necessary to repeat with emphasis, and a warning to all who would use it as a footway. In the Ward case, at p. 155 the Court thus referred to Neal v.R. R., 126 N.C. 634: "It was there said that if a person is walking on a railroad track in open daylight, and has an unobstructed view of an approaching train, and is nevertheless run over and injured, he is guilty of such negligence as deprives him of the right to recover damages; and this is so even though an ordinance *Page 667 of a town, as to the train's rate of speed, was being violated at the time, or the bell was not rung as required by the ordinance, or a lookout was not kept by the engineer or fireman, the injury being referred by the law to the plaintiff's own negligence as its proximate cause, citing McAdoo'scase, Syme's case, Meredith's case, Norwood's case, High's case, allsupra." Justice Hoke, in two recent cases, has clearly and forcefully stated the true doctrine: "We have held in many well considered cases that the engineer of a moving train who sees, on the track ahead, a pedestrian who is alive and in the apparent possession of his strength and faculties, the engineer not having information to the contrary, is not required to stop his train or even slacken its speed because of such person's presence on the track. Under the conditions suggested, the engineer may act on the assumption that the pedestrian will use his faculties for his own protection and will leave the track in time to save himself from injury." This was said by the learned justice in Talley v. R. R., 163 N.C. 567, citing Beach v. R. R., 148 N.C. 153, and Exum v. R. R., 154 N.C. 408, and in Hill v. R. R., 169 N.C. 740, and on the same day that case was decided, we again reaffirmed the principle in Treadwell v. R. R.,169 N.C. 694, saying in regard to it: "It can never be assumed that trains are not coming on a track at a particular time when it is (588) being used for the convenience of trespassers or licensees, and, therefore, that there can be no risk to a pedestrian from them. In the cases above cited this Court held, as it did also in Beach v. R. R.,148 N.C. 153, that a railroad track is intended for the running and operation of trains, and not for a walkway, and the company owning the track has the right, unless the statute has in some way restricted that right, to the full and unimpeded use of it. The public has rights as well as the individual, and usually and reasonably the former are considered superior to the latter. That private convenience must yield to the public good and public accommodation is an ancient maxim of the law. If we should for a moment listen with favor to the argument, and eventually establish the principle, that an engineer must stop or even slacken his speed until it may suit the convenience of a trespasser on the track to get off, the operation of railroads would be seriously retarded, if not made practically impossible, and the injury to the public would be incalculable. The prior right to the use of the track is in the railway, especially as between it and a trespasser who is apparently in possession of his senses and easily able to step off the track. He has the advantage of the company, whose train can run only on its track, and besides is using its property gratuitously for his own pleasure and convenience, and if he has implied license to do so, it must be considered as held, and the *Page 668 privilege must be exercised, subject strictly to the company's right to use its tracks for running its trains."
The principles heretofore adopted and applied by us in the cases to which we have referred seem to have met with approval in all other courts, and they certainly accord with our sense of justice and fairness.
Public carriers are held to a strict accountability in the discharge of their duties of receiving and transporting freight and passengers, and heavy penalties have been imposed by statutes for failure to do so, or for delays in doing so. In order to discharge this legal obligation to the public, sometimes very onerous at the best, they are compelled to have fixed schedules for their regular trains and also to run extra trains to accommodate the public and to perform their duty, and their trains are, therefore, constantly in operation, day and night.
The track laid under the Boylan Bridge was a main track and always live, and one on which a train might pass at any time. But plaintiff also had actual notice of the train's approach, for his companion, and his own witness, warned him of it by telling him to "look out." Why tell him to do so, if there was no danger anticipated from the coming train when it passed them? And there is another very pertinent question, Why did plaintiff not hear the train as well as his companion, who was walking with him and right by him? He did not look, or he would have seen it, as it was in plain view, on a straight track in the (589) broad daylight. He did not listen, for if he had done so he would have heard it, for his companion, Tom Jennings, both saw and heard it.
There are other considerations which lead to the conclusion that defendant is not liable to the plaintiff for this injury. The companion. Tom Jennings, testified that he was walking right by him and did not feel the force of the wind in the least. The improbability that plaintiff was sucked under the cars is by itself very great, when viewed in the light of his own testimony, and is really contrary to the physical law; but when we examine the other evidence it becomes conclusive that no such thing happened, and that he was injured by his own act.
In L. N. R. R. v. Lawson, 161 Ky. 39 (170 S.W. 198), the Court held: A railroad company owed to a licensee walking near its tracks, and who knew of the approach of a train, no duty to slacken its speed of 25 or 30 miles an hour in order to prevent him from being sucked under the train, since, conceding the possibility of its occurrence, it is so remote that ordinary care does not require a railroad company to anticipate or guard against it. It was said in the opinion: "The danger of striking a trespasser is infinitely greater than the danger of injuring a licensee by suction. Trespassers are frequently killed. The number of persons actually sucked under trains, even if such cases ever occur *Page 669 is so infinitesimally small it would certainly be unreasonable to require railroad companies to reduce the speed of their trains for the purpose of avoiding such accidents. If there be any danger from suction, certainly a licensee, who knows of the approach of a train and has a reasonable opportunity to do so, must get away from the track a sufficient distance to avoid being injured in that way. In our opinion, the trial court erred in not directing a verdict in favor of defendant." The same principle was declared in Graney v. St. L. I. M. S. R. R., 157 Mo., 666 (57 S.W. 276).
This Court, in Markham v. R. R., 119 N.C. 715, held: An engineer seeing a person walking on or near the railroad track, and having no reason to know or believe that he is disabled in any way from seeing, hearing, and understanding the situation, is allowed to presume that the person is sane and prudent and will either remain upon the sidetrack, where he is safe, or will leave the roadbed proper upon the approach of the train. And we held in Matthews v. R. R., 117 N.C. 640, that an engineer approaching a person who is walking on a footpath near the end of the cross-ties in the same direction as the train is moving has the right to assume that he will remain where he is, if a safe place, or will step farther away from the track if it is dangerous, and that the latter's own want of care must be considered the legal cause of his injury. And in Royster v. R. R., 147 N.C. 347, 350, it was held that the rapid speed of the train, even if an unusual one, can make no difference, if the injured party knew, or could by looking and listening or otherwise by the exercise of due care on his part have known (590) that the train was coming toward him, citing Pepper v. R. R.,105 Cal. 389; Kelly v. R. R., 78 Mo., 138; and to the same effect are Meredith v. R. R., supra, and Norwood v. R. R., supra, which held that the trespasser or licensee must keep a sharp lookout for his own protection, and if he fails to do so, and is hurt, the fault is all his.
The cases cited by the plaintiff will be found, on examination, to be quite distinguishable from this case, as the facts were radically different, and they were decided upon the application of a principle altogether different. It may be remarked, though, that the cases generally agree that suction does not, at least usually, occur at the sides of the train, but only at the rear, and for obvious reasons.
That the train was running on Sunday makes no difference, even if it was violating the local law in that respect. The Court said in P. W. S. R. R.Co. v. P. and H. Towboat Co., 23 Howard (64 U.S.), 209, 218: "The law relating to the observance of Sunday defines a duty of a citizen to the State, and to the State only. For a breach of this duty he is liable to the fine or penalty imposed by the statute, and nothing more. Courts of justice have no power to add to this penalty *Page 670 the loss of a ship by the tortious conduct of another, against whom the owner has committed no offense. It is true that in England, after the statute 29 Ch. II., forbidding labor on the Lord's day, they have, by a course of decisions perhaps too obsequiously followed in this country, undertaken to add to the penalty by declaring void contracts made on that day; but this was only in case of executory contracts which the courts were invoked to execute. It is also true that cases may be found in the State of Massachusetts (see 10 Met., 363, and 4 Cush., 322) which, on a superficial view, might seem to favor this doctrine of set-off in cases of tort. But those decisions depend on the peculiar legislation and customs of that State more than on any general principles of justice or law. See the case of Woodman v. Hubbard, 5 Fost., 67. We would refer, also, to a case very similar in its circumstances to the present, in the Supreme Court of Pennsylvania, in which this subject is very fully examined by the learned Chief Justice of that Court; and we concur in his conclusion: `We should work a confusion of relations, and lend a very doubtful assistance to morality, if we should allow one offender against the law, to the injury of another, to set off against the plaintiff that he, too, is a public offender. See Mohney v. Cook,26 Pa., 342.' We do not feel justified, therefore, on any principles of justice, equity, or of public policy, in inflicting an additional penalty of $7,000 on the libellants, by way of set-off, because their servants may have been subject to a penalty of twenty shillings each for breach of the statute."
(591) Another reason why the fact of its being Sunday should have no effect on the result is that it was not the proximate cause of the injury, which might just as well have followed if it had been on a Monday.
The case is to be decided, not by the sacredness of the day on which the accident occurred, but by the management of the train and the conduct of the plaintiff; and to this may be added the fact, which constitutes a third reason, that it was an interstate train not subject to the local statute. As was observed by Mr. Webster in the argument of Gibbons v. Ogden, 9 Wheaton, 17: "The State may legislate, it is said, whenever Congress has not made a plenary exercise of its power. But who is to judge whether Congress has made this plenary exercise of power? It has done all that it deemed wise; and are the States to do whatever Congress has left undone? Congress makes such rules as in its judgment the case requires, and those rules, whatever they are, constitute the system. All useful regulations do not consist in restraint; and that which Congress sees fit to leave free is a part of the regulation as much as the rest." The same view was adopted inRe Rahrer, 140 U.S. 545, where the Court said: "The power of Congress *Page 671 to regulate commerce among the several States when the subjects of that power are national in their nature is also exclusive. The Constitution does not provide that interstate commerce shall be free, but, by the grant of this exclusive power to regulate it, it was left free except as Congress might impose restraint. Therefore it has been determined that the failure of Congress to exercise this exclusive power in any case is an expression of its will that the subject shall be free from restrictions or impositions upon it by the several States." However it may formerly have been, Congress has recently so fully occupied the entire field of interstate commerce as to forbid any action by the State which tends to regulate, control, or restrict it. It was held in Leisy v. Hardin, 135 U.S. 100, that commerce between the States has been confided exclusively to Congress by the Federal Constitution, and is not within the influence or control of the State, in the exercise of its police power, unless made so by congressional action. Where Congress is silent or has merely failed to act upon any special subject, it is equivalent to a declaration on its part that in the particular case commerce shall be free and untrammelled. Bridge Co. v.Kentucky, 154 U.S. 204.
There is no question in this case as to the violation of any city ordinance in regard to the speed of trains or of any other law on that subject. The Raleigh ordinance regulating the speed of trains within the city limits was not passed until 1912, whereas the plaintiff was injured in 1910. The original theory upon which this case was brought, judging by the complaint, was that the train was running at a speed exceeding 6 miles an hour, which was the limit fixed by the city ordinance, but it turned out, contrary to this theory, that there was no such ordinance at the time of the accident. There are also other (592) discrepancies between the allegations and the proof.
Plaintiff testified that he could not tell how fast the train was running. The engine was standing at the tank taking water, and was 200 feet from the bridge, and the accident occurred 285 feet beyond the bridge, making 485 feet traversed by the engine before plaintiff was injured. It was a heavy grade from the tank to this place and beyond. Plaintiff's witness, Phillips, said the train was running at a speed of 6 or 8 miles as it passed under the bridge, and consisted of 2 engines and 46 cars. It would be hard to believe that such a train, proceeding up a considerable grade, and round a curve, could acquire the momentum of speed described, 25 miles per hour. Our knowledge of natural and physical laws contradicts any such claim. The train had hardly gone a distance equal to one-third of its own length before the accident occurred. But according to Phillips, it had only acquired a speed of 6 or 8 miles an hour when it passed under the bridge, a little less than half of the whole distance. "Uncontroverted evidence produced to *Page 672 establish a fact does not preclude the court from finding the fact to be otherwise by resort to judicial knowledge." 16 Cyc., 850, 852, 863, 864, and 873. "We may take notice of matters and facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence." 16 Cyc., 852. Russ v. Boston,157 Mass. 60. We are not bound to believe that has been done which is impossible according to the ordinary laws of nature; and this judicial notice extends to distance and speed and their relation to each other (16 Cyc., 863, 873), where the question is so presented as to require but the exercise of a little common sense, which even judges are supposed to possess, to determine how the fact is.
It must be remembered, too, that Jennings said that he did not feel any force of the wind as the train passed by them, and he was almost touching the plaintiff as they walked along the Seaboard track together, and plaintiff said the force of the wind pushed him out, not in, and knocked him down; he scrambled to get away, and his leg was cut off. The utter improbability that he was sucked under the cars is shown by this story when compared with the other evidence, and our common knowledge that such is not the case at that part of a train, there being nothing to create a vacuum and cause an inrush of air, so as to create suction towards the car. The force of the air would be outward — centrifugal, rather than centripetal — and this is what knocked him down, if it be true that he fell and lost his leg in that way. It is more reasonable to conclude, as did the learned judge, even against the verdict of the jury, that the plaintiff's theory was incredible and that he was doing more than merely walking quietly with Jennings along the Seaboard track, and there was strong evidence that the train was only (593) starting and that he was trying to get on the car, or grabbing at it with other boys, sportively but recklessly.
We have dealt with the case as if the plaintiff was on the defendant's right of way; but it is stronger for the defendant, as he was on the Seaboard track, apparently out of danger, and no engineer could reasonably have foreseen the occurrence of such an accident, even if we assume that it could possibly have happened by suction.
The cases of Graney v. R. R., 157 Mo., 666, and R. R. v. Lawson,161 Ky. 39, which were cited to us by defendant's counsel, are precisely applicable, as they hold that if injury by suction is possible, it is so improbable as not to be in law among those events which can be foreseen, and, as matter of law, that an engineer is not required to anticipate its occurrence and slacken the speed of the train on that account. The other case cited for plaintiff, Munroe v. R. R., 85 N.J. L., 688, presents facts essentially different from those shown in this record, as there the intestate was standing as a passenger on the platform in *Page 673 Elizabeth, N. J., at the place for receiving and discharging passengers and where he had been invited to come and where he had the right to be, and a train from New York whizzed by him at an enormous rate of speed — a mile a minute — and the force of the current of air thus generated knocked him down on the platform and injured him, so that he died. The case is principally valuable here as tending to show that this plaintiff's theory, that he was forced under the train by the sudden rush of the wind, is unreal, or, at least, not substantiated, for the intestate of plaintiff, in that case, was not sucked under the cars, but was pushed along and fell on the platform.
It results that the nonsuit was properly entered, for several reasons:
1. That there was no evidence that defendant was guilty of any negligence which proximately caused the injury to the plaintiff.
2. If the injury occurred in the manner alleged by the plaintiff, it was such an unusual occurrence as not to be one which the engineer could reasonably have expected would be the result of the rapid movement of the train.
3. The plaintiff having equal opportunity with the engineer to see the danger, if there was any, had he exercised ordinary care, and being able to place himself in a position of safety, was himself guilty of such negligence as bars his recovery.
Our conclusion is that, for the reasons above stated, the judgment should be
Affirmed.