(dissenting) : I dissent from the opinion of Mr. Justice Watts in this case, affirming the judgment below, and think that it should be reversed, for the reasons which follow.
My objections to the validity of the judgment are hereinafter set forth in italics under separate subdivisions. Before entering upon'a discussion of these several objections, it appears proper to make the following:
PrEriminary Statement
This is an action for $50,000 damages on account of the alleged wrongful .death of the intestate, D. B. Miller, who was killed as the result of a collision between a north-bound train of the Atlantic Coast Line Railroad Company and an automobile in which he was riding, upon a street crossing in the town of St. Stephens, on December 19, 1922; The defendants named in the summons and complaint are Atlantic Coast Line Railroad Company, A. J. Johnston, the engineer of the north-bound passenger train, Montague Eowler, the fireman of that train, Camp Manufacturing Company, a logging corporation which operated a short line railroad physically connected with the Atlantic Coast Line Railroad, and Arthur Pulley, the engineer of the logging train.
The detailed circumstances of the collision will be best understood, by reference to the blueprint in evidence, a replica of which upon a reduced scale will be incorporated in the report of the case. It appears that the Atlantic Coast Line Railroad Company (which for convenience will here*176inafter be referred to as the “Coast Tine”) operated its trains upon double tracks, which ran practically north and south at the point in question; the track upon which northbound trains were operated being the extreme eastern track. Near and parallel therewith, to the west, was the track upon which south-bound trains were operated, the eastern rail of which was about 8 feet from the western rail of the .north-bound track. To the west of the south-bound main line, and about 8 feet from it, was a side track serving the station depot. The space between the rails of each of the two main line tracks was 4 feet 8}4 inches; so that the space between the eastern rail of the north-bound main line and the eastern rail of the side track was approximately 25 feet. These three parallel tracks crossed the principal street in the town at right angles.
In the evening of December 19, 1922, the date of the collision, a logging train, composed of several box cars and flat cars, which belonged to the defendant Camp Manufacturing Company (hereinafter referred to as the “Camp Company”) and was being operated by the defendant, Arthur Pulley, engineer, backed into the side track from the north, for the purpose of loading certain freight then in the depot into one of the box cars. The logging train had stopped north of the street crossing and entirely clear of it. Pulley, the engineer, inquired of Clintworth, the station agent of the Coast Tine, for the freight, and was directed by him to back the train until the box car, into which the freight was to be loaded, was opposite the door of the warehouse, and was told by him that he was permitted under the law to block the crossing with the flat cars at the end of the train for 10 minutes. Pulley proceeded to follow these directions, and while the freight was being loaded, the flat cars blocking the crossing, the collision occurred.
The movements of the intestate, converging to the tragedy, were as follows:
*177The deceased, Miller, and a young' man by the name of Pinckney, each a traveling salesman for a grocery house in Charleston, competing with the other, but on very friendly terms, had engaged a room in St. Stephens at a Mrs. Locklear’s, on the west side of the railroad, about 90 feet from the side track. Every Tuesday night they would meet and stay together in this room. On this particular Tuesday, Miller had left Charleston in the morning on his usual trip, and had gotten some three miles out of the city when his automobile stopped. Pinckney overtook him, on a similar mission, traveling in a Ford roadster: Miller joined Pinckney. They traveled north together,. Pinckney operating his car, and reached the vicinity of St. Stephens about dark. About half a mile from St. Stephens the road traveled by them crossed the railroad from west to east. Pinckney testifies that he stopped his car and looked for trains; that he saw a light up at the depot, which appeared to be stationary; that they then crossed the track safely and proceeded along the road, parallel with the railroad, some 350 feet, to the store of one Shuler; that they stopped for a few minutes at Shuler’s store, and then resumed their journey up the same street towards the street crossing. The night was dark, misty, and very cold; the street was soft and muddy; the curtain was up on Pinckney’s side of the car, the left, but not on Miller’s side; windshield and isinglass lookout were both spattered with mud. Pinckney testifies that the approach to the crossing was on 'a slight upgrade, and that they stopped at the foot of this grade; that he told Miller to look to the right, and that he looked to the left, neither seeing a train; that he could see the store lights on the opposite side of the railroad, but did not see the obstructing flat cars until he got on the north-bound track; that when he saw the obstruction he tried to reverse his engine, when instantly the crash came.
The specific acts of negligence relied upon by the plaintiff are:
*178(1) As to- the Camp Company: That it and its engineer, Pulley, had placed and kept a train of cars across the street obstructing the railroad crossing unnecessarily and for an unreasonable time, and without safegaurds, lights, or warning to the public of such obstruction, in violation of law.
(2) As to the Coast Tine: That it acquiesced in, consented to, and approved of the act of the Camp Company and its engineer in so obstructing the crossing.
(3) As to the Coast Line: That by its engineer and fireman it operated the passenger train at a high, excessive and dangerous rate of speed in violation of law.
(4) As to‘ the Coast Line: That by its engineer and fireman it operated the passenger train without proper or adequate lookout, safeguards, and warnings, and without giving any proper or adequate signals of its approach, contrary to law.
The defendants answered, denying the material allegations of the complaint, and setting up contributory negligence on the part of the deceased. At the close of the evidence, motions for directed verdicts were made by the Camp Company and its engineer, Pulley, and by the Coast Line, which motions will be incorporated in the report of the case. The motions were refused.
The verdict of the jury was :
“We find for the plaintiff against the Atlantic Coast Line Railroad Company the sum of twenty-five thousand dollars, actual damages; we further find for the plaintiff against the Camp Manufacturing Company the sum of twenty-five thousand dollars, actual damages.”
The defendants Camp Company and Coast Line each moved for judgment in its favor, notwithstanding the verdict, and failing, for a new trial, upon grounds which will be incorporated in the report of the case. The motions were refused, in an order which also will be reported. The defendants have appealed upon exceptions which will be reported.
*179 I. Mrror in not directing a verdict in favor of both corporate defendants upon the ground of gross contributory negligence on the part of the intestate.
The undisputed facts, from the mouths' of the plaintiff’s witnesses, speak for themselves:
Two young men in full possession of their faculties, familiar with the tracks and crossing in question at St. Stephens, got into a Ford roadster at Shuler’s store, about 400 feet below the fatal crossing, on a road parallel with and adjacent to the railroad tracks. They drove a little past the crossing, then turned back and approached the tracks on a diagonal, the car being pointed slightly south of west. Within 5 feet of the first track the only survivor of the accident states that he stopped to look, and, changing into low gear, they proceeded across the track with one of the fast through passenger trains of the Atlantic Coast Fine Railroad Company bearing down on them, with its headlight burning, and with the rush and roar that is incident to the progress of such a train.
The principal witness for the plaintiff (Funk) states that he saw the automobile first about S feet from the track, and in his own words, “I seen them when they started to slow down; I thought they were fixing to' stop, but they went on up on the track.” That the train approaching was so clear to the witness that he goes on: “They went up in a kind of V shape on the tracks; they must have seen the train coming.” The above statement was made on direct examination. On cross examination, in reply to the question, “You knew as a matter of fact they ought to stop?” the same witness answered, “I knew something would happen if they went on.”
Miss Crooks, another witness for the plaintiff, standing just beyond the western edge of the side track and within a relatively few feet of the point of collision, testified that, “just as they got on the crossing good,” the train struck the car; and this witness testified that she knew that the train was coming and had seen it for three-quarters of a mile *180away. It was clearly established that, merely by turning one’s head and looking, the approaching train could have been seen for miles.
The testimony of Pinckney himself is that he stopped to look toward the south, the direction from which the train was coming, about 5 feet from the track, at which point the approaching train could have been observed for a distance of ii miles. This is the only point from which he did look, which fact negatives any weight that might be given the contention of the plaintiff that there were trees further to the south which might obstruct the view. The curtain was up on the left side of the car (Pinckney’s side), and when his automobile was turned toward the west his view toward the south was thereby obscured. The only opportunity to see of which he availed himself in looking toward the south was through a “light” in the curtain, covered with isinglass, which Pinckney admits was spattered with mud and did not afford him a clear vision.
Miller was looking toward the north and reported the way clear on that side. The only inference to be drawn is that he took no precaution whatever as to looking toward the south, but relied on Pinckney’s vision in a drizzling rain, through a mud-bespattered isinglass. The windshield was also- spattered - with mud. This, on a misty, rainy night, afforded slight opportunity for observation in going ahead. Under these circumstances, fully aware of the position of the tracks, claiming to be aware of the possibility of danger and of the duty of stopping to ascertain whether it was safe to proceed, Pinckney and Miller drove on the tracks directly in front of the coming train, which by the slightest exercise of their senses of sight and hearing they could have discovered.
The cases of Reynolds v. Atlantic Coast Line Railroad Co., 131 S. C., 208; 126 S. E., 449. Sauls v. Railroad Co., 129 S. C., 427; 125 S. E., 34, and Manning v. Railroad Co., 129 S. C., 391; 125 S. E., 31, are generally conceded to have *181gone far in fastening liability upon railroads where there was an alleged failure to give the statutory crossing signals, resulting in injury to persons using the highway. In the case at bar, however, different from those cases, there is no evidence of anything that mig'ht have obstructed the clear view of Pinckney, and, had he looked and.listened at a place and in a manner that would have made the use of his senses effective, the conclusion is inescapable that he must have discovered the impending danger. Unless this Court specifically overrules the doctrine of Cable Piano case, 94 S. C., 143; 77 S. E., 868, and the Chisolm case, 121 S. C., 394; 114 S. E., 500, it can never decide that one who goes upon a railroad track in the face of an approaching train, whose presence he could discover by the slightest effective exercise of his sense of vision, is free from the charge of gross contributory negligence.
In view of the testimony of every eyewitness in the case, the fact that Pinckney testified that he looked, when the evidence shows that, if he had done so, he would have seen the train, is not acceptable as evidence that can create an issue. Of course, if this Court is ready to hold that there is no such thing as gross contributory negligence as a matter of law in a crossing case, that, nO‘ matter how apparent the gross contributory negligence is, it is an issue for the jury] this is the case in which to overrule the Cable Piano case, the well-considered Chisolm opinion, and other cases along that line, including the case of Osteen v. Atlantic Coast Line Railroad Co. (119 S. C., 438), 112 S. E., 352, where the Court en banc decided (quoting the syllabus in 112 S. E.) :
“If a truck driver attempted to cross immediately in front of an approaching train, although he saw the train, or by exercising the slightest degree of care could have seen and heard it, and to a person of ordinary prudence such an attempt to cross was obviously dangerous, reckless, or wanton, he was guilty of gross contributory negligence, recklessness, and wantonness as a matter of law/1
*182In the case at bar there were no diverting influences attributable to conditions produced or controlled by the railroad company, or of unusual conditions of any kind, which in any wise could have distracted the attention of Pinckney or of Miller from their duty to look before driving on the crossing directly in front of the train. This brings the case clearly within the doctrine of the Cable Piano case, unless, of course, the testimony of Pinckney that he looked and did not see the approaching train gives rise to an issue to be submitted to a jury, when it must be obvious that, had he looked with the slightest degree of effectiveness, he must have seen it.
It can hardly be seriously contended that, because Miller and Pinckney were traveling in rainy weather and had put, up a curtain on the left-hand side of their car, the consequent obstructions to' a clear vision toward the south were diverting influences either controlled by the railroad company or so unusual as to warrant the distraction of the attention of Pinckney and Miller from their duty to look.for a train approaching from the south. The rule as laid down in the Chisolm case, supra, 121 S. C., 394, 402; 114 S. E., 503, is as follows:
“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 order effectively to bring themselves within this requirement, both Pinckney and Miller should have looked in each direction, it being entirely within their control either to unbutton the curtain of the automobile or to look around it to the south. The evidence is that Miller did not look to *183the south at all and that Pinckney looked through the isinglass “light,” which he admitted did not afford a clear vision.
II. Frror in not directing a verdict in favor of the defendant Camp Company, upon the ground that, assuming it to have been negligent in obstructing the crossing, the collision was not the proximate result of such negligence.
It is not surprising, in view of the Circuit Judge’s apprehension of the law of proximate cause, hereinafter criticized, that the position of the appellant was not sustained. As appears from the authorities hereinafter cited, upon another phase of the question of proximate cause, the intervention of an efficient cause is generally held to interrupt the sequence between the prime act and the injury, so that the injury is referable to the intervening cause, the prime act thereby becoming the remote and not the proximate cause.It is clear, however, that if the intervening cause was not an independent cause, but one which naturally, in the common experience of men, was itself a result reasonably to have been apprehended from the prime act, the sequence will not be held to have been interrupted, and the prime act will be considered the proximate cause. In other words, if the intervening act resulted from the prime act, in a natural and probable sequence, such as the prime wrongdoer should have foreseen, the prime act is held to have been the proximate cause.
As is very clearly expressed by Mr. Justice Marion in the case of Green v. Railroad Co., 131 S. C., 124; 126 S. E., 441; 38 A. L. R., 1448, the intervening efficient cause will not be deemed the proximate cause, if “it is an unnatural and abnormal intervention' in the ordinary train of events and consequences not reasonably to be anticipated from the act or omission which is charged to the alleged tort-feasor as a breach of duty.” See, also, Foster v. Union, 129 S. C., 257; 123 S. E., 839. In the latter, the opinion being written by the same most careful judge, it is said:
*184“Obviously, the foresight which the law imputes to a tort-feasor cannot extend to consequences brought about by the intervention of a responsible human being, where the act of the intervener breaks the chain of causation between the original wrong and the injury complained of, and is in itself sufficient to constitute an efficient, responsible cause of the injury.”
In the case at bar, the prime act was the negligent obstruction of the crossing; the intervening, efficient cause of the injury was the collision between the onrushing engine of the passenger train and the automobile in which the intestate was riding. The first natural inquiry is, what was the immediate cause of the collision? According to the allegation of the plaintiff’s complaint, which he cannot get away from, the immediate cause of the collision was the failure of the railroad company to sound the proper warning signals of the approach of the passenger train to the highway crossing. According, to the evidence, the immediate cause of the collision was the failure of the intestate, before entering upon the railroad track, to exercise the simplest precautions to ascertain whether he could safely enter upon the railroad track.
In this connection, as relating to the Camp Company, which is not charged with a violation of the signaling statute, and to the issue of proximate cause, it is proper to emphasize the fact that the Camp Company is not obliged to show that the entry of the intestate upon the railroad track was an act of gross negligence.
If the plaintiff’s contention, as alleged in the complaint, be sustained, the signals for the crossing were not given by the railroad company; that failure caused the intestate to enter upon the track without the usual and necessary precautions ; it caused it without justifying it, and was an intervening and efficient cause of the collision. If it be not sustained, as the verdict of the jury exonorating the employees of the railroad indicates, in fact adjudicates, the intestate’s *185entry was without the shadow of an excuse, itself an intervening, efficient cause, due to his negligence, which surely the Camp .Company cannot be held bound to anticipate as a result of its act.
So that, between the prime act of negligence, the obstruction of the crossing, and the injury, certainly one or the other, or perhaps both, of two distinct, efficient causes intervened, the failure of the railroad company to sound the warnings, or the entry of the intestate upon the railroad track without precautions, neither of which can be said to have been a natural, probable, or reasonably to be apprehended result of the prime act.
In the case of Foster v. Union, supra, the intervening act was that of the father of the plaintiff. The rule should at least be as strong where the intervening immediate act was that of the person injured. The immediate cause of the collision being the entry upon the railroad track without the necessary precautions, the question revolves itself into this: Was that a result reasonably to be apprehended by the Camp Company under the circumstances ?
To characterize the obstruction of the crossing, therefore, as the proximate cause of the' injury, requires the utmost strain of mental processes to conclude either that the Camp Company should have foreseen that if it obstructed the crossing, either the railroad company would omit the crossing signals, or that the driver of an automobile, in defiance of all safeguards for his own protection, would drive upon a railroad track, in the face of a train traveling 40 miles an hour, the headlight of which could have been seen for eleven miles down the track. But it is said the absence of lights, or other warning of the presence of the obstructing cars, induced the intestate to enter upon the tracks. Possibly so, and it might have been a perfectly harmless venture; but it did not induce him to enter without reasonable precautions against what the presence of the rails warned him might happen, the coming of a train. Nor did it induce the railroad *186company to omit giving the statutory signals or other warnings of the approach of the train, which omission the plaintiff claimed, as against the railroad company, was the proximate cause of the injury, and which he had the Circuit Judge to charge that presumptively it was. Nor could the Camp Company reasonably have anticipated that the intestate would not avail himself of a perfectly safe space of 25 feet between the north-bound track and the side track.
III. Error in the Circuit Judge’s definition of “proximate cause.”
The following is the language of his charge referred to:
“In order that an injury be the proximate result of an act, it is not necessary that the actor should have foreseen the particular consequences or injury which resulted. It is enough if he should have foreseen that his act, if negligent, would probably result in injury of some kind to some one to whom he owes a duty.”
The idea is accentuated by the modification of the defendants’ request to charge, in striking out the words “the collision,” and interpolating the words “some injury to travelers on the highway” in lieu thereof. To make the matter plain I append the request; the words stricken out are in brackets and the interpolation in italics:
“Even if you find from the evidence that the defendants, Camp Manufacturing Company and its engineer, Arthur Pulley, were negligent and willful in obstructing the crossing, but that these defendants could not reasonably have anticipated that [the collision] some injury to traveler's on the highway would result from such obstruction, then I charge you that, under such circumstances, such obstruction would not be a proximate cause of the collision, although you find the same to be a remote cause, and your verdict must, under such circumstances, be in favor of these defendants.”
The request as submitted was entirely right; the modification set up a false standard which is obliged to have caused confusion and consequently was prejudicial error. The point *187at issue was whether the obstruction of the crossing was the proximate cause of the collision, the particular injury, and was to be determined under the well-established rule that it was such proximate cause if the particular injury was a result reasonably to have been anticipated from the negligent act. Keel v. R. Co., 122 S. C., 17; 114 S. E., 761.
Of course, as frequently held, it is not essential that the wrongdoer actually foresaw the particular consequences or injury that resulted, so long as it appears that there was an unbroken sequence between the prime act of negligence and the injury, and there would be such unbroken sequence if the particular act, although not actually foreseen, was one of the class of injuries which naturally, in common experience, would result from the act of negligence, and therefore should have been foreseen by a person of ordinary prudence.
To say that the obstruction of the crossing was the proximate cause of the collision, if the obstructing railroad company should have foreseen that its act would probably result in injury of some kind to some one, is a statement of the elements of negligence in the'act of obstruction, and is in no sense a test of the question of proximate cause. Scores of instances have arisen in which railroad companies have been held liable in damages for injuries directly resulting from the obstruction of crossings by cars, the proximate results thereof, such as the frightening of horses or teams; the diversion of a loose horse into a cut, where he was killed by another train (Murray v. Railroad Co., 10 Rich, 227; 70 Am. Dec., 219); crashing into a standing car with a team, ignorant of its presence; climbing under or between standing cars (Littlejohn v. R. Co., 49 S. C., 12; 26 S. E., 967); damage of various kinds caused by consequent delay, such as failure of a physician to reach a patient (Terry v. Railroad Co., 103 Miss., 679; 60 So., 729; 44 L. R. A. [N. S.], 1069); failure of a fire engine to reach a fire (Cleveland, etc., R. Co. v. Tauer, 176 Ind., 621; 96 N. E., 758; 39 L. R. A. [N. S.], 20); failure of a passenger to reach his train *188(Patterson v. R. Co., 56 Mich., 172; 22 N. W., 260); and doubtless others.
In Lindler v. Railroad Co., 84 S. C., 536; 66 S. E., 995, the railroad company was held liable for leaving an engine standing on a street crossing in violation of a city ordinance, a horse having been frightened thereby and having run away. In Prescott v. Hines, 114 S. C., 262; 103 S. E., 543, a traveler collided with a standing train. From this experience, it is not wide of the mark to say that, in every case of such obstruction, the railroad company must anticipate that some kind of injury may probably result to some one therefrom. So that under the rule announced, the question whether the particular injury was the proximate result of the obstruction would be absolutely foreclosed by the fact that some other injury may have resulted which was the proximate result.
It is entirely possible that any number of injuries may result from the obstruction, and each one of them be the proximate result of the obstruction, and yet the particular injury under investigation may not have been. The rule forces the conclusion that the particular injury, which was not the proximate result, is the proximate result, because a dozen other injuries may have happened which were. The various instances tend to establish the fact that the obstruction of a crossing is an act of negligence, but they cannot establish the fact that a particular injury was a proximate result of the obstruction.
It is proper to state, in justice to the learned Circuit Judge, that his charge is sustained by the opinion of Mr. Justice ITydrick, as the organ of the Court, in the case of Sandel v. State, 115 S. C., 181; 104 S. E., 567; 13 A. L. R., 1268. I have endeavored to show that the doctrine thus announced cannot be sustained in reason or authority, and that it should not be followed. The test for proximate causes is exceedingly simple, as given by the Supreme Court of the United *189States in the case of Milwaukee, etc., R. Co. v. Kellogg, 94 U. S., 469; 24 L. Ed., 256:
“In order to warrant a finding that negligence * * * is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.”
How different from the declaration in Sandel v. State:
“It is not necessary to show that a person charged with negligence should have foreseen the particular consequences or injury that resulted. It is enough that he should have foreseen that his negligence would probably result in injury of some kind to some one.”
In Atchison, etc., R. Co. v. Calhoun, 213 U. S., 7; 29 S. Ct., 321; 323 (53 L. Ed., 671), the Court said:
“One is held responsible for all the consequences of his act, which are natural and probable, and ought to have been foreseen by a reasonably prudent man.”
IV. Error in the modification of the defendants’ request to charge in reference to the use of the side track and the blocking of the crossing.
The following is the request; the modification is italicized:
“The use of a railroad side track for shifting cars or loading and unloading freight is a lawful use, and cannot be considered negligence or willfulness, even if a highway is temporarily obstructed thereby, unless such obstruction is unnecessary or for an unreasonable length of time, considered with reference to the existing circumstances.”
The effect of the modification is to prescribe two conditions under which the obstruction will be considered negligence : (1) That there was no necessity for the obstruction; (2) that it continued for an unreasonable length of time either of which would make out a case of negligence against the railroad company. In other words, the modification means that it matters not how completely the railroad company may have established the fact that the obstruction had *190not continued for an unreasonable length of time under the circumstances, the obstruction will be considered an act of negligence unless there was a necessity for it.
I do not think that this is the law; on the contrary, I think that the sole test is whether the crossing had been blocked for an unreasonable length of time, under the circumstances. The necessity upon a particular occasion may be a circumstance entering into the issue of reasonableness of time, but it cannot be an element which the railroad company must establish.
In Littlejohn v. Railroad Co., 49 S. C., 12; 26 S. E., 967, the Court says:
“If a railroad company obstructs a highway for an unreasonable length of time, or for a longer time than the law permits, unless it is without fault, the railroad company thereupon becomes a trespasser.”
Reaffirmed in Walker v. Railroad Co., 77 S. C., 161; 57 S. E., 764; 12 Ann. Cas., 591.
There are doubtless many instances where a highway is temporarily blocked by a railroad in the shifting of cars on a side track, which it has constructed and has a right to use, which constitute a proper and reasonable use of its tracks, but which are not entirely necessary. For instance, frequently a train of cars is propelled or pushed across a highway for the purpose of leaving one car at a specified point. It might not be necessary for the whole train to be pushed or pulled across the thoroughfare, since it would be possible by extra shifting, and by the employment of an extra force, perhaps, to cut such cars off, shift the remainder to another track, and propel or push those to be delivered in such numbers as not to necessitate an obstruction of the highway. The extra time particularly, and cost, all of which bear .heavily upon the public, would not be. justified, however, by denying the standard of reasonable use or practice and requiring the standard of necessity.
*191When the trial Court adopted the unqualified test of necessity, it did away with the test of reasonable and ordinary use. In view of the fact that there was evidence in this case that there was sufficient space on the side track for the Camp train to have backed the flat cars past the station, across and below the crossing, to have cut. them off and left them, and then to have pulled the box cars back up to the depot for the loading of freight, which loading ordinarily would not have taken more than from five to ten minutes, this charge amounted to a direction to the jury that the blocking of the crossing, being unnecessary, was improper, and constituted negligence.
V. Hrror in charging the jury that the failure of a railroad company to give the statutory signals for a highway crossing raises a presumption that such failure was the proximate cause of a collision which may have occurred.
A consideration of the cases of Wragge v. Railroad Co., 47 S. C., 105; 25 S. E., 76; 33 L. R. A., 191; 58 Am. St. Rep., 870. Strother v. Railroad Co., 47 S. C., 375; 25 S. E., 272. Bowen v. Railroad Co., 58 S. C., 322; 36 S. E., 590. Cable Piano Co. v. Railroad Co., 94 S. C., 143; 77 S. E., 868. Peeples v. Railroad Co., 115 S. C., 115; 104 S. E., 541. Burns v. Railroad Co., 65 S. C., 229; 43 S. E., 679. Duncan v. Greenville, 73 S. C., 254; 53 S. E., 367, and Turbyfill v. Railroad Co., 83 S. C., 325; 65 S. E., 278, will show that the Court at one time recognized the rule as charged by the Circuit Judge, but has distinctly and specifically repudiated it, as particularly the cases of Drawdy v. Railroad Co., 78 S. C., 374; 58 S. E., 980. Chisolm v. Railroad Co., 121 S. C., 394; 114 S. E., 500. Whaley v. Ostendorff, 90 S. C., 281; 73 S. E., 186, and Cirsosky v. Smathers, 128 S. C., 358; 122 S. E., 864, demonstrate.
In Whaley v. Ostendorff, supra, in an opinion by the present Chief Justice, the Court declares:
*192“The fact that there is negligence per se does not, however, tend to show that such negligence is actionable. The question whether negligence is actionable depends upon the further question whether such negligence was the direct and proximate cause of the injury.”
And in Cirsosky v. Smathers, supra, it is said:
“That the violation of a Statute, although declared negligence per se, must be shown to have been the proximate cause of the injury, or at least a contributing proximate cause, is abundantly shown by the authorities and sustained by common sense and justice.”
VI. Error in charging the law of imminent danger or emergency.
The instruction to the jury was as follows:
“In considering whether or not a failure to look or listen was negligent, the jury may take into consideration any evidence, if any there should be, showing the presence of some imminent danger or emergency not brought about by the traveler’s own negligence, or the presence or influence of unusual or extraordinary conditions not created or controlled by the traveler himself, and especially if such conditions are brought about, by the railroad company, along with any and all other evidence in the case.”
This was clearly error, since the duty “to look and listen” devolved upon Pinckney and Miller before they went upon the tracks, and this duty could not be qualified or lessened by any “imminent danger,” since there was no “imminent danger” at that time. They could have stopped for hours before going on the track, and there would have been no imminent danger that could warrant any lessening of their legal duty to look or listen before going farther.
The effect of this charge was to excuse the failure of the occupants in their criminal carelessness and wantonness in driving on the tracks in front of train 82, and to allow the jury to adopt Pinckney’s testimony of surprise at seeing the Camp train ahead of them to this inapplicable law, and *193excuse everything on the ground of sudden peril and emergency. .
The duty to “look and listen” arose before they drove on the first track. There was no need “to listen” for the Camp train; it was standing still on the third track, and had been standing still acccording to plaintiff’s contention for more than 30 mnutes; hence this charge in effect directed the jury to search for some excuse for the failure to discover the presence of train 82.
Having driven on the tracks under the circumstances, when they discovered their peril, the doctrine of sudden emergency was not available to them, for their own gross contributory negligence had brought it about. It is fundamental to the application of that rule that he who invokes it must be without fault. Dobbins v. S. A. L. R. Co., 108 S. C., 254; 93 S. E., 932.
VII. Error in refusing the motion of the Camp Company for a new trial, upon the ground that the liability of that company having been predicated solely upon the negligence of the engineer, and the verdict of the jury having exonerated the engineer, a verdict against the Camp Company is without a foundation.
The only act of negligence attributed to this company, in the complaint, is that it, through its engineer, Pulley, had placed and kept a train of cars across the street, obstructing the railroad crossing unnecessarily and for an unreasonable time, and without lights or warnings to the public of such obstruction, in violation of latw. The jury having- found a verdict in favor of the engineer, the necessary, inevitable, result of this finding is to exonerate the •Camp Company from liability based solely upon such alleged negligent act of its engineer. The motion of the Camp Company for a new trial, upon this ground, should have been sustained.
There is in the complaint no general allegation' of negligence charged against the Camp Company. The allega*194tion is that the defendant Pulley was at the time of the fatal collision in charge as engineer of a logging or freight train of the Camp Company, and that the Camp Company and its engineer, Pulley, placed that train across the street and obstructed the crossing unnecessarily and for an unreasonable time, which can only mean that the basic act of negligence was that of Pulle)R which, imputed to his master, fixed liability upon it. There is no other act of negligence alleged on the part of the Camp Company, and nothing in the complaint or in the evidence, tending to show that the plaintiff intended to rely upon the negligent act of any other servant for which Pulley was not responsible. Even if the complaint should be construed as containing a general allegation of negligence on the part of the Camp Company, the established rule is that, except in cases involving the relation of passenger and carrier, a general charge of negligence against the master, coupled with a specific charge against either the master or the servant, will be regarded.as explained and controlled by the specific act averred, in the absence of some clear indication in the complaint that the general negligence was intended to cover other acts of negligence than those alleged. '
In the case of Sutton v. Railroad Co., 82 S. C., 345; 64 S. E., 401, which was an action brought by a passenger for injuries sustained as such, there was a general allegation of negligence on the part of the carrier, coupled with a specific charge against a servant of the carrier. The Court cited with approval the general rule declared in Goodwin v. Railroad Co., 76 S. C., 557; 57 S. E., 530, to the effect that:
“When a complant contains allegations of specific acts of negligence, and also general allegations of negligence, the general allegations should be regarded as explained and controlled by the specific acts of negligence averred, in the absence of some clear indication in the complaint that the general allegations were intended to cover other acts of negligence than those alleged.”
*195The Court, however, held that:
“In the application of the general rule stated in Goodwin v. Railway, 76 S. C., 560; 57 S. E., 530, the material distinction must be observed between a suit by a passenger against a carrier, where the presumption mentioned applies, and a suit by some other person not a passenger, as employee, trespasser, or licensee, in which the presumption of negligence does not necessarily arise upon mere proof of injury by some agency or instrumentality of the carrier. The cases cited by appellant to sustain his contention were not cases by a passenger against a carrier, but were cases in which it was essential to recovery to show the specific act of negligence alleged.”
From which it is plainly to be inferred that, in all but passenger and carrier cases, the doctrine declared in the Goodwin case is applicable, that a general charge of negligence is controlled by the specific, with the limitation expressed in the above quotation. In all cases, passenger and carrier and others, where the complaint contains a specific charge of negligence against the master, coupled with a similar charge against a servant, separate and distinct from the other, a verdict in favor of the servant does not exonerate the master, for the obvious reason that it may be referred to the specific act charged against the master.
But where the complaint contains neither general or specific charges against the master, and the plaintiff relies solely upon the specific act charged to the servant, imputed to the master, the authorities in this State are simply overwhelming that, if the jury’s verdict should exonerate the servant and be against the master alone, it cannot stand. This is true, even in passenger and carrier cases. Durst v. Railroad Co., 130 S. C., 165; 125 S. E., 651.
In Sparks v. Railroad Co., 109 S. C., 145; 95 S. E., 344, the action was against the railroad company and its conductor, jointly, based upon the alleged willful act of the conductor in pitching a trespasser off the train. The jury *196rendered a verdict against the company alone. The Court held that the verdict against the company could not stand, as its liability depended upon the act and intent of the conductor, an issue which the jury had decided in favor of the conductor. The judgment against the company was reversed and a new trial ordered. Upon the second trail the company pleaded the judgment in favor of the conductor (Jones) as a bar to the further prosecution of the action. The Circuit Court “sustained the plea in so far as the liability of the company depended upon the acts of Jones, holding that Jones and his alleged wrongful acts were out of the case, as the verdict and judgment in his favor amounted to an adjudication that he was guilty of no actionable wrong.” The Court held:
“It follows that the Circuit Court correctly ruled that the matters involved in the judgment in favor of Jones were res ad judicata, and therefore Jones and his alleged wrongful acts were out of the case, and the company could not be liable for them. In fact, it had been finally adjudicated that Jones had done no wrong. It necessarily follows that the company had done no wrong through the agency of Jones.”
In the meantime — that is, between the first and second appeals in the Sparks case- — the case of Jones v. Railroad Co., 106 S. C., 21; 90 S. E., 183, arose. In that case the alleged liability of the company was based solely, in the complaint, upon the wrongful acts of certain servants of the railroad company. The jury rendered a verdict against the company alone. The Court said:
“Under the recent decisions in Sparks v. Railroad Co., 104 S. C., 266; 88 S. E., 739, and Jenkins v. Railroad Co., 89 S. C., 408; 71 S. E., 1010, the verdict is illogical and cannot stand, as no delict of the company was proved, other than through and by the agency of Parks and Gilliard [the servants joined], one or both. The company’s liability is predicated solely upon the acts or omission of one or both of them; and, if neither of them is liable, it necessarily fol*197lows that the company is not. It would be unreasonable to say that the servant did no wrong, but nevertheless his master is liable, when the only wrong, charged against the master is that of the servant.”
In Spigener v. Railroad Co., 111 S. C., 405; 98 S. E., 330, the Court said:
“Where a servant is united with the master in an action for damages for tort, and the allegation and proof shows that the tort complained of was the tort of this servant alone, then a verdict against the master alone cannot stand, because, if this servant did not commit the tort complained of, then there was no tort, and a verdict against the master alone cannot stand.”
In Beauchamp v. Winnsboro Granite Corp., 113 S. C., 527; 101 S. E., 856, 858, the Court said:
“Where master and servant are sued together for the same tort, and the master’s liability is predicated solely upon the conduct of the servant, a verdict alone against the master is illogical, and cannot be sustained, because it in effect finds that the servant did no wrong, but nevertheless holds the master liable, when the only wrong charged against him is that of the servant. * * * In the Jones case it was said that in all the cases in which the master and servant were sued jointly for the same tort, and a verdict against the master alone had been sustained, there was evidence either of a joint tort of master and servant, or of some separate and independent delict of the master, or some other servant, for which the servant sued with the master was not liable” —citing Sparks v. Railroad Co., 104 S. C., 266; 88 S. E., 739. Jones v. Railroad Co., 106 S. C., 20; 90 S. E., 183.
In Howell v. Railroad Co., 114 S. C., 21; 102 S. E., 856, the Court said:
“But the acquittal of Williams will not affect the acquittal of the railroad, unless Williams was the only agency by which the event could have been compassed.”
*198In other words, that, if the liability of the railroad was based solely upon the act of Williams, his acquittal would acquit the railroad.
In Durst v. Railroad Co., 130 S. C., 165; 125 S. E., 651, it is held :
“In an action against the master and servant jointly, based solely upon the negligence of the servant, a verdict against the master alone will not be allowed to stand.”
In Jenkins v. Railroad Co., 130 S. C., 180; 125 S. E., 912, the cases of Sparks, 109 S. C., 145; 95 S. E., 344. Jones, 106 S. C., 20; 90 S. E., 183, and Sparks, 104 S. C., 266; 88 S. E., 739 (second appeal), are reaffirmed; the Court holding:
“If, in an action against the master and the servant jointly, the alleged liability of the master is based solely upon an alleged act of negligence on the part of the servant, and a verdict is rendered in favor of the servant and against the master, the judgment will be set aside as resting on a ‘baseless fabric.’ ”
In Jenkins v. Railroad Co., 89 S. C., 408; 71 S. E., 1010, the plaintiff first sued the lessor company for damages on account of a personal injury while a passenger on a train operated by a lessee company. Judgment in favor of the lessor company was rendered. Thereafter the plaintiff brought a second action upon the same cause of action against the lessee company. The defendant pleaded the judgment in favor of the lessor company in bar of the second action. The plea was sustained by this Court:
“As the liability of the C. N. & E. [the lessor company, first sued] is predicated upon that of the defendant [the lessee compan)?, held to have been the agent of the lessor company], and as it would be liable for anything for which the defendant is liable, in respect to the matter complained of, the logical conclusion necessarily is that if the C. N. & L. [lessor] is not liable, the defendant is not. Now, as between the plaintiff and C. N. & L., it has been conclusively ad*199judicated that the C. N. & L. is not liable. Therefore, the defendant is not, and the former judgment is a bar to this action.”
That case is direct authority for the proposition that a judgment in favor of a master or principal is res ad judicata in a subsequent suit against the servant or agent based upon the identical cause of action upon which the principal or master was first sought to be held. The converse of that proposition is equally true as has been shown. The Court further said:
“In Logan’s case [82 S. C., 522; 64 S. E., 515], and also in Rookard’s case, 84 S. C., 190; 65 S. E., 1047 [27 L. R. A. (N. S.), 435; 137 Am. St. Rep., 839], it is stated that a judgment on the merits in favor of a lessee railroad company [the agent of the lessor company] would bar an action against the lessor for the same cause, because the liability of the lessor is predicated upon that of the lessee. In other words, if the operating company, the one that actually does the injury, is held not to be liable, it follows that the lessor, upon whom the law imposes liability only for the acts of the'lessee, cannot be liable.”
In Rookard v. Railroad Co., 84 S. C., 190; 65 S. E., 1047; 27 L. R. A. (N. S.), 435; 137 Am. St. Rep., 839, the Court said:
“A judgment on the merits in favor of the agent is a bar to an action against the principal for the same cause, because the principal’s liability is predicated upon that of the agent.”
See, also, Logan v. Railway Co., 82 S. C., 518; 64 S. E., 515.
An additional reason for sustaining this conclusion is given in the Jones case, 106 S. C., 21; 90 S. E., 183, and in the Sparks case, 109 S. C., 145; 95 S. E., 344. It is thus expressed in the Jones case:
*200“There is another reason why the verdict cannot be sustained. The company’s liability is predicated solely upon the conduct of its servant under the doctrine respondeat superior; and, under the facts and circumstances proved, if the company is liable to plaintiff, the servant or servants whose wrongful acts or omissions actually caused the injury are liable over to the company for the amount which it will be compelled to pay on account thereof. But, as the verdict acquits both the servants of having done any wrong, the company is deprived of its remedy against the offending servant or servants, because the judgment i'n this case would be a bar to an action by the company against either or both of them.”,
The verdict in favor of the engineer can mean nothing if it does not mean that he did not unnecessarily and for an unreasonable time block the crossing with his train, and that he did not fail in an alleged duty to safeguard, light or warn the public of the presence of the obstruction. So that it appears beyond the shadow of a doubt that, the complaint counting solely upon the negligent act of the engineer, and the verdict negativing the alleged negligence, there is no foundation for a verdict against the Camp Company.
VIII. Hrror in refusing the motion of the Coast Line for a new trial, upon the ground that the liability of that company having been based upon its negligence in consenting to, acquiescing in, and approving of the act of the Camp Company in obstructing the crossing, and the verdict of the jury having exonerated the Camp Company from negligence in this respect, a verdict against the Coast Line upon this ground is without a foundation.
The first act of negligence attributed to this company, in the complaint, is that it acquiesced in, consented to and approved of the act of the Camp Company and its engineer in placing and keeping a train of cars across the street, ob*201structing the crossing unnecessarily, and for an unreasonable time, and without safeguards, lights, or warnings to the public of such obstruction, in violation'of law. The jury having found a verdict in favor of the engineer, thereby exonerating the Camp. Company from any imputation of negligence in this regard, it is impossible to predicate negligence ta the Coast Line in acquiescing in, consenting to, and approving an act which is conclusively determined by the verdict of the jury not to have been an act of negligence.
It will be observed in this connection that the complaint does not charge the Coast Line with a failure to provide safeguards, lights, or other warning to the public of the presence of the obstruction. It is clear that the phrase “with the consent, acquiescence, and approval of its codefendant Atlantic Coast Line” was intended to amplify the charge of .negligence on the part of the Camp Company and its engineer, and not a charge of negligence against the Coast Line. But, assuming that it was so intended, it could only amount to a charge that the Coast Line acquiesced in, consented to, and approved of what the Camp Company had done, and surely such conduct on its part could not be considered neglig-ence, when the act itself has been judicially determined not to have been an act of negligence.
In permitting the Camp Company to operate its train upon the track of the Coast Line, the Camp Company was a licensee, and in the performance of duties owing ^to the public the Camp Company occupied the position of a lessee or agent .of the Coast Line. The verdict exonerating the engineer exonerated the Camp Company, and the exoneration of that company as the agent of the Coast Line exonerated the latter. See reference to Jenkins v. Railroad Co., 89 S. C., 408; 71 S. E., 1010, above.
IX. Error in refusing the motion of the Coast Line for a new trial upon the ground that the liability of that company having been predicated upon the negligence *202 of its employees in not giving warning of the approach of the passenger train, and the verdict of the jury having exonerated said employees, a verdict against the Coast Line, upon this ground, is without a foundation.
The second act of negligence attributed to this company, m the complaint, is that, by its engineer and fireman, it operated the passenger train at a high, excessive and dangerous rate of speed, in violation of law. A verdict having been practically directed by the Court in favor of the fireman and the jury having found a verdict in favor of the engineer, the necessary, inevitable, result of this finding is to exonerate the Coast Line from liability based upon such alleged negligent act of its • engineer and fireman. See authorities cited above.
The third act of negligence attributed to this company, in the complaint, is that by its engineer and fireman it operated the passenger train without proper or adequate lookout, safeguards, and warnings, and without giving any proper or adequate signals of its approach, in violation of law. A verdict having been practically directed by the Court in favor of the fireman, and the jury having found a verdict in favor of the engineer, the necessary inevitable result of this finding is to exonerate the Coast Line from liability based upon such alleged negligent acts of the engineer and fireman. See authorities cited above. It is declared in the leading opinion:
“Where the servant or employee sued was not the only agency under the pleadings and evidence which could have committed the wrong, then acquittal of the servant is not a discharge of the master.”
• — which is a distinct recognition of the converse proposition, that where the servant or employee sued ivas the only agency under the pleadings and evidence which could have *203committed the wrong, the acquittal of the servant is a discharge of the master.
The proposition is freely conceded that, if the pleadings and evidence allege and establish an act of negligence chargeable to the master alone, or to a servant other than the one sued, the acquittal of the servant sued does not work an acquittal of the master. As is said in the Jones case:
“Examination of the cases relied upon by respondent in which verdicts against the master were sustained, notwithstanding the acquittal from liability of his codefendant servant, will show that, in each of them, there was evidence either of a joint tort of master and servant, or of some separate and independent delict of the master for which the servant was not liable.”
This obviously does not mean that, in violation of all well-recognized rules of pleading, the plaintiff may recover upon an act of negligence not alleged in the complaint, simply for the reason that it may appear in the evidence; that is to say, that if the complaint alleges a specific act of negligence against the master and a specific act against the servant, he may recover upon- either or both of the acts alleged, but he may not recover upon a specific act against the master, or a specific act against the servant, or a specific act against some other servant, not alleged in the complaint.
In Spires v. Railroad Co., 47 S. C., 28; 24 S. E., 992, it is held that under a general allegation of negligence, in the absence of a motion to make more definite and certain, the plaintiff may introduce any competent evidence to show negligence on the part of the defendant. But the Court adds:
“If the complaint had alleged specific acts of negligence, * * * then the plaintiff would be restricted to the introduction of such testimony only as would tend to prove the acts of negligence alleged in the complaint” (opinion by the present Chief Justice).
*204In Proctor v. Railroad Co., 61 S. C., 170; 39 S. E., 351, after quoting the foregoing extract from the Spires case, the Court says:
“This is for the obvious reason that it.is neither fair nor just to require a party, who is brought into Court and called upon to answer for certain specified misconduct, to answer for other misconduct of a totally different character with which he has not been charged, as he cannot reasonably be expected to- be prepared to answer, as no such charge has been brought against him.”
In Goodwin v. Railroad Co., 76 S. C., 557; 57 S. E., 530, the Court said:
“Where a complaint is general in its allegation of negligence and the defendant does not move to have.the allegations made definite and certain, the plaintiff may introduce under the general allegations any competent evidence to support the-charge of negligence. Spires v. Railroad Co., 47 S. C., 30; 24 S. E., 992. Johnson v. Railroad Co., 53 S. C., 209 [303]; 31 S. E., 212 [69 Am. St Rep., 849], but where the complaint alleges specific acts of negligence the plaintiff is restricted to proof of such acts of negligence” (citing cases).
Approved in the later case of Sutton v. Railroad Co., 82 S. E., 345; 64 S. E., 401, where the above question is adopted.
In Fell v. Railroad Co., 33 S. C., 198; 11 S. E., 691, the Court held that, where there was an entire absence of evidence as to the only act of negligence alleged in the complaint as the ground of the plaintiff’s action, a nonsuit was proper.
In Jenkins v. McCarthy, 45 S. C., 278; 22 S. E., 883, the *205plaintiff was strictly confined to the sole act of negligence alleged in the complaint.
In McKain v. Water Co., 89 S. C., 378; 71 S. E., 949, the Court said:
“In the case of Spires v. Railroad Co., 47 S. C., 28; 24 S. E., 992, the rule is thus stated: If -the complaint alleges specific acts of negligence, then the plaintiff will be restricted to the introduction of such testimony only as would tend to prove the acts of negligence alleged.”
Since the acts of negligence charged to the Camp Company through its engineer, and to the Coast Line through its engineer, have been eliminated by the verdict in favor of these servants, the only conceivable theory upon which the plaintiff can hope to sustain the verdict against these masters alone is that the blocking of the crossing, even for a reasonable time and of necessity in the operation of the logging train, with the acquiescence, consent, and approval of the Coast Line, created a situation of peril, a cul de sac, into which the automobile would not have been driven if Pinckney and Miller had been suitably warned by flag or light of the situation by one or the other or by both of-these corporations. This is the theory upon which the leading opinion proceeds, as I understand it.
There are sufficient objections to sustaining this contention. In the first place, the negligence charged to the Camo Company, alone through its engineer, is in placing the train on the crossing and keeping it there an unnecessary and unreasonable time, without any safeguards, lights, or warnings to the public of such obstruction. The verdict of the jury has established the innocence of the engineer and the Camp Company of these alleged delinquencies; it is not permitted to the plaintiff to limit this exculpation to the blocking of the crossing unnecessarily and for an unreasonable time, and to insist that the alleged failure to safeguard, light, or warn, is still open; that is a part ofrthe entire charge, and is con-*206eluded by the verdict. In the next place, the complaint does not count upon a breach of duty on the part of the Coast Line to safeguard, light, or warn; it only alleges that the Coast Line acquiesced in, consented to, and approved of the alleged delinquencies of the Camp Company and its 'engineer, delinquencies which the verdict has established did not exist.
X. Brror in refusing the motion for a new trial as to both corporate defendants, upon the ground that, the verdict of the jtiry in favor of the employees of the Coast Line having eliminated the plaintiff’s cause of action based upon the signaling statute, the defense of ordinary contributory negligence was open to both defendants. The evidence is susceptible of only one inference, at least that the collision was due to the ordinary contributory negligence of the intestate.
The verdict of the jury having eliminated the charge of negligence against the engineer of the passenger train in not sounding the statutory signals, the case becomes one of negligence at common law and not under the statute. In such common-law action the defendant may be exculpated by showing contributory negligence on the part of the person injured, of an ordinary character, not of the degree of gross or willful negligence, or acting in violation of law, as is required in an action under the statute.
Viewing it, then, as an action at common law, I do not see how it is possible to arrive at any other conclusion than that the collision was due to the contributory negligence of the plaintiff’s intestate. See observations above in reference to the gross contributory negligence of the intestate. In reality, the defendant Camp Company had the right to rely upon the ordinary contributory negligence of the intestate, .as that companj? was not charged with the breach of statutory duty in the matter of signaling for the crossing.
*207 XI. Brror in refusing the motions of the corporate defendants for judgments in their favor notwithstanding the verdict.
If the authorities which have been cited above, to the effect that a verdict acquitting the agent upon whose act the principal is sought to be held liable amounts to an acquittal of the principal, it logically must follow that in such case the principal is entitled to immediate judgment in his favor. It would be useless to remand the case for a new trial, when upon the record the Court must direct a verdict for the principal.
XII. A reversal of the judgment against the Camp Company, upon whose negligence the liability of the Coast Line is predicated, demands a reversal of the judgment against the Coast Line.
It may be suggested that the judgment against the Camp Company may be reversed, and that against the Coast Line be affirmed. I do not think that in justice to the latter company this can be done. As I have endeavored to show, the acts of negligence charged against the Coast Line, through the alleged defaults of its servants operating the passenger train, fade from the case, by reason of the verdict exculpating those servants. All that remains is the supposed connection of the Coast Line with the act of the Camp Company, in wrongfully obstructing the crossing, and failing to put out warnings to the public. That connection is assumed to be the consent, acquiescence, and approval of the Coast Line of the act of the Camp Company. But, as the Camp Company has been exonerated by reason of the verdict exculpating its engineer, I do not see how it is possible to predicate a verdict against the Coast Line upon its participation in an act which has been adjudicated free from negligence.
It may be insisted, however, that as to the Coast Line the verdict may be referred to the neglect of that company, after permitting the obstruction, to put out some kind of *208warning to the public of its presence. This cannot be, for there is no such allegation in the complaint. See paragraph 6 (a) which charges such neglect solely to the Camp Company. Assuming that the Camp Company was negligent in the matter of the obstruction of the crossing (as to which there has been an express adjudication to the contrary, in the acquittal of its agent charged therewith), the Coast Line could be held liable only upon the charge (if it be anything more than an amplification of the charge against the Camp Company) that it consented to, acquiesced in, and approved of such obstruction by the Camp Company. The allegation of the complaint is that:
The “defendant Camp Manufacturing Company and its engineer, Arthur Pulley, with the consent, acquiescence, and approval'of its codefendant Atlantic Coast Line Railroad Company, had placed and kept a train of cars on a track of Atlantic Coast Line Railroad Company and across the public highway and crossing of said road, obstructing the crossing of said highway and said railroad necessarily and for an unreasonable length of time, and without any safeguards, lights, or warnings to the public of such obstruction.”
This is quite far from a charge of negligence against any other than the Camp Company. But, assuming that it was intended as a charge of negligence against the Coast Line, it does not allege any participation by the Coast Line in the act specifically charged against the Camp Company, so as to make the latter in pari delicto with-the Camp Corn-pan}'; its liability could be only a constructive liability, as that of a principal for the act of his agent. In such a case the principal, upon paying the damage caused by its agent, has recourse against the agent for reimbursement. To allow the verdict against the Coast Line to stand, and reverse the verdict against the Camp Company, would necessarily deprive the Coast Line of this right of reimbursement.
*209The only evidence connecting the Coast Line with the act of the Camp Company is that the station agent of the Coast Line directed the engineer of. the Camp Company’s train to back his train until the box car, into which the freight was to be loaded, was opposite the door of the warehouse through which it was to be trucked, and that under the law he could block the crossing, with his train for ten minutes. There is no evidence tending to show that under the circumstances ten minutes would have been an unreasonable length of time within which to stop the train and complete the loading. The effort of the plaintiff to prove that the blocking continued for 15 or 20 minutes is a tacit concession that 10 minutes would not have been an unreasonable length of time. And, if not the agent directed the engineer to do what the law permitted him to do. If the engineer exceeded the direction of the station agent, I do not see how it is possible to hold that the Coast Line participated in and was in pari delicto with the engineer in the unlawful obstruction of the crossing.
The most that can be said of the connection which the Coast Line had with the obstruction of the crossing by the Camp Company is that it gave permission to use its property for a perfectly lawful purpose, and the fact, if it be a fact, that the Camp Company availed itself of this permission to do an unlawful act, in no sense made the Coast Line a participator therein, and, if the Coast Line could be held liable for the act of the Camp Company, it assuredly, under these circumstances, would be entitled to reimbursement. As is said in 38 Cyc., 493 :
“Although it is established that a joint wrongdoer, who has been forced to respond in damages, cannot require indemnification at the hands of his co-tort-feasors, there are two classes of cases which constitute exceptions to the rule: First, where the party claiming indemnity has not been guilty-of any fault except technically or constructively; and, *210second, where both parties have been in fault, but not in the same fault, towards the party injured, and the party from whom indemnity is claimed was the primary and efficient cause of the injury.”
In Westfield Gas & Milling Co. v. Noblesville & E. Gravel Road Co., 13 Ind. App., 481; 41 N. E., 955; 55 Am. St. Rep., 244, it is said:
“The rule that there is no' contribution nor right of indemnity between joint tort-feasors does not apply to a case where one does the act or creates the nuisance, and the other does not join therein, but is thereby exposed to liability” (that is for damages).
Speaking of the general rule of no contribution between joint wrongdoers, it is said in 31 C. J., 455 :
“The general rule, however, does not apply, and there may be a recovery of indemnity, where the person seeking-indemnity and the person from whom indemnity is sought are not pari delicto, as where, although the relation of the party seeking indemnity to the negligent or wrongful act is such that he is liable therefor, he did not join in such act, or did not know and was presumed to know that the act was wrongful, or where he was only technically or constructively at fault, as from a failure to perform some legal duty, and the negligent or wrongful act of the party from whom indemnity is sought was the primary or proximate cause of the injury, or where both parties were at fault, but not in the same fault toward the person injured, and the fault of the party against whom indemnity is claimed was the primary and efficient cause of the injury. Thus, although a municipality, through its general duty as to the safety of its streets, is constructively at fault in neglecting to repair a defect or remove an obstruction on the city streets, and is compelled to pay damages to one injured by reason of such defects or obstructions, it is entitled to be indemnified by the person who^ caused such defect or *211obstruction and who, therefore, was the efficient cause of the injury, and the fact that it consented to the operation which caused the defect or obstruction does not make it a joint tort-feasor so as to prevent it from being indemnified.”
“But to render this rule [the general rule of no contribution] applicable there must be a joint participation in the tort, and the parties must be guilty in equal degreeactual knowledge and failure of duty of one of the parties are not sufficient to invoke the rule.” Id.
See, also, 6 R. C. L., 1055.
“Where two or more are acting lawfully together in the furtherance of a common lawful purpose, one is not liable for the unlawful act of another, done in furtherance of the common purpose without his concurrence.” 26 R. C. L-, 767.
See, also, the innumerable cases cited in support of the above quotation from 31 C. J., 455, and especially the case of Washington Gaslight Co. v. District of Columbia, 161 U. S., 316; 16 S. Ct., 564; 40 L. Ed., 712.
It may be assumed, as the authorities seem to hold, that if the Coast Line consented to, acquiesced in, and approved of the act of the Camp Company in unlawfully obstructing the crossing for an unreasonable length of time, it became a joint tort-feasor with the Camp Company in such unlawful act. 26 R. C. L., 767. Richardson v. Emerson, 3 Wis., 319; 62 Am. Dec., 694. Guille v. Swan, 19 Johns. (N. Y.), 381; 10 Am. Dec., 234. Brittain v. McKay, 23 N. C., 265; 35 Am. Dec., 738. Ross v. Rutter, 12 Vt., 265; 36 Am. Dec., 342. But the evidence does not tend to show a permission to do other than a perfectly legitimate act, to block the crossing for 10 minutes, which does not appear to have been an unreasonable length of time; and even if it had consented, etc., to such an unlawful act, although joint tort-feasor, it would not have lost the right of indemnity from the actual perpetrator of the tort.
*212 XIII. Error in permitting the cross examination of the witness Huggins as to a statement of an opinion alleged to have been made by him relating to the cause of the collision, and in permitting contradictory testimony in the denial of Huggins that he had made such statement.
Upon cross examination Huggins was asked by counsel for the plaintiff whether, upon a certain occasion, he had made the statement that the collision would not have occurred if the Camp Company had not obstructed the crossing. He replied that he had made no such statement, but had said that the collision would not have occurred if the travelers had continued over the crossing. Objection was interposed upon the ground that the matter was collateral and merely the expression of an opinion. In reply, over similar objection, testimony was allowed that he had made the statement attributed to him. It is generally held that a witness may not be impeached with reference to statements made by him upon collateral matters. State v. Wyse, 33 S. C., 582; 12 S. E., 556. State v. Adams, 49 S. C., 414; 27 S. E., 451. Jones v. McNeill, 2 Bailey, 466.
It is not always easy to determine what is a “collateral matter.” Mr. Wigmore says, in 2 Wig., Ev. (1st Ed.), § 1003:
“The test that is dictated by the principle above explained, and the only test in vogue that has the qualities of a true test — definiteness, concreteness, and ease of application— is that laid down in Attorney General v. Hitchcock; could the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction?” (Italics by the author.)
I do not think that there can be a doubt under the decisions of this Court and everywhere else, but that the fact, in reference to which the contradiction is attempted, must be a fact relevant to some issue in the case.
*213“Contradictory statements of a witness, to be admissible for the purpose of impeachment, must be material to the issue, and must ordinarily be a statement of fact and not a mere opinion of the witness.” 28 R. C. L., 634.
“It is not permissible to impeach a witness by showing that he has made contradictory statements as to collateral, irrelevant or immaterial matters, and the test is whether, if the matter alleged to have been stated by the witness out of Court were true, the party seeking to impeach the witness would be entitled to prove such matter in support of his case.” 40 Cyc., 2699, citing perhaps 100 cases.
In State v. Alexander, 2 Mill, Const., 171, the Court said:
“But a witness cannot be examined [as] to matters irrelevant to the issue, for the purpose of contradicting his testimony on these matters, and thereby impeaching his testimony.”
In Smith v. Henry, 2 Bailey, 118, it is held that it is only as to matters relevant to the issue that a witness can be contradicted for the purpose of impeachment. In State v. Adams, 49 S. C., 414; 27 S. E., 451, the Court says:
“It is equally well settled that it is not competent to offer testimony tending to contradict the witness as to irrelevant or merely collateral matter.”
In State v. Watson, 94 S. C., 458; 78 S. E., 324, the Court quotes with approval the following extract from the opinion in State v. Hasty, 76 S. C., 105; 56 S. E., 669:
“The presiding Judge ruled that the testimony therein mentioned was irrelevant, and that it was not competent for the purpose of contradiction, as it related to a collateral question. This Court is satisfied that the testimony was not only irrelevant, but that it was not admissible, for the purpose of discrediting the witnesses for the State therein mentioned.”
In People v. Chin Mook Sow, 51 Cal., 597, it is said:
*214“Where the question asked on cross examination calls for a response in respect to a matter which the party asking .the question would have a right to prove as an independent fact, the rule [as to collateralness] does not apply.”
See, also, to the same effect: State v. Jones, 74 S. C., 456; 54 S. E., 1017. State v. Tidwell, 100 S. C., 249; 84 S. E., 778. Harbert v. Railroad Co., 78 S. C., 537; 59 S. E., 644.
The test of relevancy in this case is whether, if the witness Huggins, who was sought to be impeached, had been a witness for the plaintiff, he could have testified to the matter contained in the statement attributed to him, that in his opinion the collision would not have occurred if the Camp. Company had not obstructed the crossing. The connection of Huggins to the transaction, where he was, what he Was doing, - what he saw, and what he had the opportunity of seeing, as testified to by him before the question was asked, was as follows: He and his wife were standing in front of Osterman’s store, which is very near Funk’s stoi'e, south of it, and nearly opposite the crossing; he observed the approach of the passenger train, heard certain signals given by it, and noticed the Ford car as it passed going in the direction of the crossing. Fie stated that he did not see the collision, and it is apparent from both his testimony and the testimony of his wife that they did not know anything had happened until some one rushed up and announced the news. It will also be noted that the witness admitted that he had thought that the automobile had gotten across. He admitted that he -did not see the accident. He was watching the train as it approached and was not giving particular thought to the automobile one way or the other. There is nothing to show that he saw the car go beyond the crossing, turn to come back, and stop before proceeding on the track, and -any view which the witness might express as to the cause of the accident was mere conjecture.
*215As I understand the law as declared by this Court, the general rule is that a nonexpert witness may not give his opinion in reference to the issues involved in a case, but that to this general rule there are exceptions. It is manifest, therefore, that to render such an opinion admissible, it must come within the well-established exceptions. It must be made to appear':
(1) That the witness has detailed the facts, within his personal knowledge, upon which the proposed opinion is based; and
(2) That the statement of such facts by the witness is sufficiently comprehensive as to be the basis of an intelligent opinion; and
(3) That the opinion of the' witness was necessary for the information of the jury by reason of the fact that the entire surroundings could not be reproduced, so as to afford the jury the same opportunity of forming a correct opinion as when viewed by the witness; or,
(4) That the necessity of the case compelled the admission of the opinion testimony.
There is some difference of opinion among the authorities as to whether it is always necessary that the witness have detailed the facts upon which his opinion is asked. See 3 Wig., Ev. (1st Ed.), § 1918. But the decisions of this Court are unvarying in the requirement. In Jones v. Fuller, 19 S. C., 66; 45 Am. Rep., 761, the Court said:
“It is necessary that the witness should first state the facts upon which he bases his opinion, where the facts are such as are capable of being reproduced in language.”
In Ward v. Charleston City R. Co., 19 S. C., 521; 45 Am. Rep., 794, the Court said:
“It is a general rule of evidence that opinions of witnesses are not competent, but to this there are several exceptions; for instance, experts may give opinions, and even ordinary witnesses, after, stating the facts upon which their opinions *216are founded, may also state their opinions resting on the facts.”
In this case the Court concludes as follows :
“Under the principles upon, which these cases were decided, we think the question propounded here was competent, especially as the witnesses were present when the accident occurred, and were speaking from the facts as they occurred within their sight and under their immediate observation.”
In Couch v. Railroad Co., 22 S. C., 557, the Court makes this statement: ,
“The plaintiff also complains that the Judge erred in not allowing William Davis and other witnesses, after the}'- had stated that the condition of the waterway, or heard it described by others, to go on and give their opinion as to the dangerous character of the place, and that prudence required that notice should have been given to one> situated as the plaintiff was. The general rule certainly is that the mere opinions of witnesses are not admissible. There are some exceptions to the rule for particular reasons, but we do' not think that any of them cover this case. The subject-matter was not of such character as to authorize the introduction of opinion from the necessity of the case.”
In Cothran v. Knight, 45 S. C., 3; 22 S. E., 596, the Court, in an opinion by the present Chief Justice, said:
“The witness was not interrogated as to the facts upon which he based his opinion, although the case was one in which they could be ‘reproduced and made palpable in the concrete to the jury’ ” Evidence excluded.
In Virginia-Carolina Chemical Co. v. Kirven, 57 S. C., 445; 35 S. E., 745, it w^as held (quoting syllabus) :
“A witness may give his opinion, based on facts capable of reproduction in language, after first stating such facts.”
In Easler v. Railroad Co., 59 S. C., 311; 37 S. E., 938, the opinion testimony was admitted upon the specific ground *217that the witness had “previously given the facts upon which such opinion would be based.”
In Burnett v. Railroad Co., 62 S. C., 281; 40 S. E., 679, the Court, in admitting the testimony, said:
“The witness stated the grounds upon which he based his opinion, which thereby renders it competent as testimony.”
In Machen v. Telegraph Co., 72 S. C., 256; 51 S. E., 697, the Court, admitting the testimony, said:
“The testimony falls within the rule of the cases that hold that a nonexpert witness may give his opinion after stating the facts upon which it is based.”
In Henry v. Railroad Co., 93 S. C., 125; 75 S. E., 1018, the Court said:
“Exception 2 cannot be sustained as his Honor [correctly] ruled that a nonexpert witness could not' give an opinion unless he had detailed facts to base it on.”
It goes without saying that, if the witness must detail the facts upon which his proposed opinion is based, the statement must of necessity be sufficiently comprehensive to form the basis of a reasonably intelligent opinion. The most important element is that the testimony must not be superfluous. It is superfluous, if it is unnecessary, that is, not needed for the information of the jury. In this respect the admission of expert opinion and nonexpert or lay opinions rest ujbon the same basis. Exipert opinions are admitted upon the ground of the superior knowledge or skill which the expert possesses; lay opinions are admitted upon the ground that “his facts cannot be so told as to make the jury as able as he to draw the inference.” 3 Wig., Ev. (1st Ed.), § Í917. Both, therefore, are admitted on account of the superior prospect of the witness, necessary or at least helpful to the jury.
“Whenever inference and conclusions can be drawn by the jury as well as by the witness, the witness is superfluous, *218and thus an expert’s opinion is received because and when his skill is greater tiran the jury’s, while a lay opinion is received because and whenever his facts cannot be so told as to make the jury as able as he to draw the inference.” 3 Wig., Ev. (1st Ed.), § 1917.
“Whenever the point is reached at which the tribunal is being told that which it is itself entirely equipped to determine without the witness’ aid on this point, his testimony is superfluous and is to be dispensed with.” 3 Wig., Ev. (1st Ed. >, § 1918.
In State v. Summers, 36 S. C., 479; 15 S. E., 369, it was held (quoting syllabus) :
“A witness having fully testified as to the language, gestures, attitude, and position of the parties to a homicide, the necessity that alone justifies nonexpert opinion evidence did not exist, and, therefore, there was no error in refusing to permit such witness to say whether he thought the defendant had cause to consider his life in danger from the deceased.”
In Dent v. Railroad Co., 61 S. C., 329; 39 S. E., 527, the testimony was admitted specifically upon the ground:
“The witness based his opinion upon facts within his own knowledge, which it would have been difficult fully to reproduce and make palpable before the jury.”
In Nickles v. Railroad Co., 74 S. C., 102; 54 S. E., 255, the Court said:
“These exceptions are intended to bring' in question the ruling of the Circuit Judge in excluding the opinions of witnesses * * * as to what caused the wreck in which Mrs. Black was killed. These two witnesses, whose opinions were sought, had both testified as to all the facts which came within her knowledge, hut neither of them was an eyewitness to the occurrence. Neither one was present when the catastrophe occurred. So, if their opinion as to the cause of the same could be given, it could only be given as experts.”
*219In Fitzgerald v. Manufacturing Co., 74 S. C., 232; 54 S. E., 373, the Court said:
“It is a cardinal rule that the evidence must be of such a character as not to fall within the range of common experience and observation, and, therefore, not to be intelligible to jurors without the aid of opinion.”
In State v. Stockman, 82 S. C., 388; 64 S. E., 595; 129 Am. St. Rep., 888, the witness was asked:
“State, if your" father had not killed him at the time he did, what would have happened?.”
The Court, holding the testimony inadmissible, said:
“What the deceased was doing or threatening to do when he was slain was an issue, and the witness testified fully as to all the circumstances, the meaning of which could not be made plainer by his opinion, and the inference for the jury.” from the circumstances was peculiarly for the jury.”
In Hand v. Power Co., 90 S. C., 267; 73 S. E., 187, the Court said:
- “The rule is well settled that, when the matter or thing to which the evidence relates cannot be reproduced or clearly described to the jury, the wintess, though not an expert, may give his opinion, after stating the facts and circumstances upon which it is based.”
In Dodd v. Railroad Co., 95 S. C., 9; 78 S. E., 525, the Court, in admitting the testimony, said:
“The surroundings could not be reproduced, so as to afford the jury the same opportunity of forming a correct opinion as when viewed by the witness.”
See, also, as bearing more or less directly: State v. James, 31 S. C., 218; 9 S. E., 844. State v. Merriman, 34 S. C., 16; 12 S. E., 619. State v. Lee, 58 S. C., 335; 36 S. E., 706. Oliver v. Railroad Co., 65 S. C., 1; 43 S. E., 307. Mauldin v. Railroad Co., 73 S. C., 9; 52 S. E., 677. Cain v. Railroad Co., 74 S. C., 89; 54 S. E., 244. Gosa v. Railroad Co., 67 S. C., 347; 45 S. E., 810. Riser v. Railroad *220Co., 67 S. C., 419; 46 S. E., 47. State v. Hyde, 90 S. C., 296; 73 S. E., 180. McCown v. Muldrow, 91 S. C., 528; 74 S. E., 386; Ann. Cas., 1914-A, 139. Miller v. Railroad Co., 94 S. C., 388; 77 S. E., 1111.
If this statement, attributed to Huggins, had been offered as coming from his lips, as a witness for the plaintiff, its admission would have violated ever)'- condition essential to its validity as evidence. It did not purport to be based upon facts within his knowledge, for he admits that he did nor see the accident and knew, nothing even of its immanence, until he had been told of its happening; he makes no statement of facts upon which such opinion may have been based; it does not purport to have even been made upon information received from others; and, lastly and conclusively, it did not purport to be an inference which the jury could not draw as well as he. If he could not have testified to it, it is necessarify irrelevant, and, under the authorities cited, cannot form the basis of impeachment.
It is impossible to affirm that the admission of this contradicting evidence was not prejudicial to the interests of the defendants. Huggins was not an agent of either of the defendants and his declarations were not binding upon them. The presiding Judge did not warn the jury that the testimony could be used only for the purpose of impeaching the credibility of the witness, as he should have done upon its admission. They may have believed the contradicting witnesses, that Huggins did make such a statement, and it is not improbable that it sunk into- their minds as a declaration supporting the main contention of the plaintiff that the obstruction was the proximate cause of the collision. The admission was error, and prejudice is presumed. Templeton v Railroad Co., 117 S. C., 44; 108 S. E., 363. The prejudice is apparent from the remark of the presiding Judge, “He was there and is telling what he saw,” in spite of the fact that Huggins denied the statement, and testified that he *221did not see the accident. The rule, in my opinion, should be strictly enforced, on account of the extreme difficulty of impressing upon the jury the single purpose of a contradiction, the impeachment of the credibility of a witness, and that it cannot be used as substantive evidence, a tendency which the average juror is prone to indulge.