dissenting: I concur witli the Court in so far as the opinion adopts and approves the doctrine laid down in Deans’ case, though the reasoning may not in all respects be in accord with my views. But I do not assent to the conclusion that railroad companies are relieved of liability for negligently killing a drunken man who is lying insensible upon the track, when under exactly similar circumstances a sober man, who had fallen asleep at the same place, would have the right to recover. I freely concede that the Court has found abundant authority and could have arrayed many more citations from text-books and decisions of other States to sustain its conclusion and justify the announcement that the dicta in a number of cases decided here should not bo followed. But the same reasoning would warrant us in turning back the dial and not only overruling such dicta as that companies must use air-brakes on passenger cars, but many actual rulings based upon the idea that the definition of negligence under given circumstances is not fixed and immutable, but must be modified as we discover its want of adaptability to new conditions.
But it is urged, first, that railway companies owe no such duty to a man whose sleep is due to drunkenness as to one who soberly and deliberately yet carelessly lies down on the track; second, that in fact a drunken man, though sound asleep, is not excused by law for drunkenness but is deemed to be willfully remaining on the track and thereby co-operating consciously with the careless servant of a company in causing his own injury.
Applying the harsh doctrine of the criminal law, adopted and adhorred to only in order to protect life, person and property from the consequences of fraud and violence, it is insisted that drunkenness is an aggravation rather than an excuse for carelessness as for crime. But, as far as it is consistent with the public safety to do so we find that the law *759follows the natural instincts of higher humanity and protects instead of punishing these unfortunates when their weakness has made them victims and sufferers-instead of criminals.
The law lends its sanction tono such rule as that; where the conduct of a drunken man is neither criminal nor tortious he forfeits any right or remedy to which he would he entitled if sober. Discussing this doctrine, then, as enunciated by Lord Penzance, and conceding the possibility of the existence of a precedent contributory negligence, which does not defeat recovery as it would if concurrent with the negligent act of a defendant, the question arising here is whether the careless act of a drunken man who is already asleep upon the track when the engineer first has opportunity to see and understand his condition is guilty of concurrent contributory negligence. It is familiar learning that a deed or other written agreement executed by one so drunk as to be unconscious of what he was doing could be avoided even in a court of law under our former system. A contract to be valid must necessarily involve the intelligent assent of the mind of him who is to be bound by it, and it is for this reason that “total drunkenness is now held to be a complete defence” when an action is brought against him to enforce it. Morris v. Clay, 8 Jones, 216; Cook v. Clayworth, 18 Vesey, 12. “Where the intoxication rises to the degree which may be called excessive drunkenness where a party is utterly deprived of his reason or understanding when he enters into it,” Justice Story says that “equity will relieve against it because in such a case there can, in no just sense, bo said to be a serious and deliberate consent on his part, and without this no contract or other act can or ought to be binding by the law of nature.” 1 Story Eq. Jur., sec. 231.
The negligence of a drunken man, who has been insensible for some time, is not to be distinguished from the sup-*760posititious case of a man who has fallen asleep on the highway (put by Parke, B., in Davies v. Mann as giving a clearer right of action than the injury to the fettered ass), unless we concede by a fiction of the law the drunken man is deemed to be still concurring in taking the risk of exposure on the track, while the man, whose sleep upon the highway is induced by other causes, is held to have been guilty of precedent carelessness in going to sleep upon the traek. If the learned Baron correctly applied his own illustration the negligence of a sober man who sleeps upon the highway is necessarily previous to that of him who drives over him after he is asleep.
“An intoxicated man” (said the Court of Connecticut by way of illustration in Isbel v. Railroad, 27 Conn., 393) “is lying in the traveled part of the highway, helpless if not unconscious, must I not use care to avoid him? May I say he has no right to encumber the highway and therefore carelessly continue my progress regardless of consequences?” Referring to this high authority Mr. Wood (2 Vol. Ry. Law, p. 1267, sec. 320) says: “The doctrine of this case has been approvingly cited by the Courts in several cases, and seems to us to 'define the true rule of duty and obligation resting upon railway companies as well as to persons lying upon their tracks, and young children as to animals. The rule may be said to be that a railroad company is bound to keep a .reasonable lookout for trespassers upon its track, and is bound to exercise such care as circumstances require to prevent injury to them. If a person seen upon the track is an adult person and apparently in the possession of his or her faculties, the company has a right to presume that he will exercise his senses and remove himself from his dangerous position, aud if he fails to do so and is. injured, the fault is his own, and there is, in the absence of willful negligence on its part, no remedy.” In *761the same section that author (p. 1269) after citing the leading case of Lake Shore Railroad v. Miller, 25 Mich., 279, quotes from the opinion of Chief Justice Chkistiancy as follows: “If,> however, he, the engineer, sees a child of tender years upon the track, or any person known to him to be, or from his appearance giving good reason to believe that he is, insane or badly intoxicated, or otherwise insensible of danger or unable to avoid it, he has no right to presume that he will get out of the way, but should act upon the belief {hat he might not or would not, and he should therefore take means to stop his train in time.” Needham v. Railroad, 37 Cal., 409. Of course numberless authorities can be cited against this position, and if they are as reasonable as they are numerous I would be constrained to yield to them.
From these authorities we gather the rules:
1. That it is the duty of railway companies to keep a reasonable lookout (at common law as well as where there is a statute).
2. That they owe this duty to trespassers upon the track as well as to others.
3. That if by keeping this reasonable lookout the engineer discover a person that he knows to be, or has good reason from his appearance to believe to be, badly intoxicated, he must use all the means at his command to stop the train.
These authorities therefore sustain our position in Deans’ case, Clark’s case and others that have followed in the same line, using almost the identical language that we are urged to modify. It will be seen that it occurred neither to the Supreme Court of Connecticut nor to Mr. Wood (who is one of the fairest of all American writers upon the law of railroad corporations) to draw a nice distinction between the duty of keeping an outlook for town trespassers and country trespassers, for sleepy men and drunkards.
*762The point to which our attention must be chiefly directed is whether the fault of the plaintiff’s intestate was not only a contributory but a concurring and co-operative cause of the injury sustained. Meeks v. Railway, 56 Cal., 513; Cooley on Torts, p. 679, 683; Tuff v. Harman, 5 C. B. Reports, N. S., 573. And the settlement of it must depend greatly upon the question whether a helplessly drunken man is fictitiously held more capable of concurring- and co-operating in or consenting to his own death than one who has fallen asleep under other influences.
It is needless to multiply authorities to meet the numerous citations offered by the Court. It is sufficient for me that this Court has declared that a company would not be relieved of the imputation of what would ordinarily be actionable carelessness on the part of its engineer because the victim of his negligence happened to be a slave to an unfortunate habit. If it is the duty of an engineer to see what by reasonable care ho can see in his front, and to avoid injury that proper watchfulness would enable him to avert, we see no reason for counting the obsolete cases in musty digests to justify a nice distinction that commends itself, neither to our sense of right and justice nor our reason. It is no more unreasonable to require an engineer to look out for the safety of a drunkard than for the protection of one who, in the full possession of his faculties, willfully lies down to sleep in a dangerous position. When a Court has laid down a principle that accords with the highest conception of what is morally right and is supported by some authority I cannot concur in acknowledging that it is our duty to go back and count and analyze the cases cited by the author relied upon in the Court to sustain us, in order to destroy the force of our own dicta, or overrule our settled decisions, unless the principle overruled has worked wrong and injustice in its enforcement. *763It is not suggested or pretended that tlie best interests of society require that an engineer should be excused from culpability in killing a-victim of intoxication who falls on the track in an unconscious condition, when if the same man had at the same place consciously incurred the risk of lying down to sleep the company would have become answerable in damages.
Following suggestions originating chiefly in Meredith v. Iron Co., 99 N. C., 580, and McDonald v. Carson, 94 N. C., 500, and the plain intendment of the Legislature, this Court, in Emry v. Railroad, 102 N. C., 224, laid down the rale that the.nisi 2>rius Judge might in his discretion submit all or only a portion of the issues raised'by the pleadings, provided those adopted were such as to afford opportunity to pass upon any view of the law arising out of the evidence, and were sufficient as a basis for the Court to proceed to judgment. This ruling has since relieved us of difficulty in many cases and promises to remove in the near future what has heretofore proven a fruitful source of controversy. The ruling upon this point has been approved in Lineberger v. Tidwell, 104 N. C., 510; McAdoo v. Railroad, 105 N. C., 151; Bond v. Smith, 106 N. C., 564; Carey v. Carey, 108 N. C., 271; Waller v. Bowling, 108 N. C., 295; Blackwell v. Railroad, 111 N. C., 153, and in several other cases. In Scott v. Railroad, 96 N. C., 428, it was stated by Chief Justice Siiith, delivering the opinion of the Court, that while two issues might be submitted, one embodying the question whether the defendant has been negligent, and another whether the plaintiff has been negligent, the same end might be attained by submitting simply the question, “Whether the defendant’s negligence was.the cause of the injury,” and telling the jury if they found it due to the plaintiff’s carelessness to respond in the negative. In Kirk v. Railroad, 97 N. C., 82, it was held error, after *764refusing to submif ail issue as to contributory negligence, to give the instruction as suggested in Scott’s case. In McAdoo v. Railroad, supra, while it was declared not to be error to submit either one issue involving the question of the defendant’s negligence alone or that and an additional inquiry as to contributory negligence, it might help the jury to reach a satisfactory conclusion in cases where it was contended that some carelessness supervening after the previous negligence of the plaintiff was the proximate cause of the injury, to submit the issues substantially as follows: “1. Was the defendant negligent? 2. Did the negligence of the plaintiff contribute (not concur) in causing the injury? 3. Could the defendant by the exercise of ordinary care have avoided the injury, notwithstanding the previous negligence of the plaintiff? ” That these are all questions which may be raised by the pleadings where an action is brought to recover damage for injuries alleged to have been caused by negligence and which are involved in all cases where a dispute arises as to whether the injury is due.proximately to the fault of the one or the other of the parties, no one will venture to deny, since, adopting even the extreme view insisted on by defendant’s counsel, that the subsequent negligence of the defendant must be willful, it is none the less a supervening .cause of injuiy. Contributory negligence must be pleaded specially in the answer. Does not pleading it raise an additional issue? If the testimony tends to show that subsequent carelessness of defeud-ant was the proximate cause of the injury complained of, proof of the allegation will excuse contributory negligence.
But it is insisted that all of these cases, too, must be overruled because, as -is assumed, the Judge below was led into an illogical and erroneous charge by the suggestions of the Court in the opinions as to the possible or proper issues that might be submitted in actions brought for negligence. *765The principle involved (and not the issues) was discussed in Deans’ case, and the error consisted not in the form of the issues, but the failure of the Judge to submit any issues at all to the jury. The first issue submitted in this case was of itself sufficient, and if properly explained to the jury there is no reason why the response to it should not have been decisive of the controversy, except as to the question (Denmark v. Railroad, 107 N. C., 185) of the amount of damage, in the event of a finding upon it in favor of the plaintiff. But in the case before us it seems that the issues were framed in a peculiar manner, the first so as to involve not only the question of the defendant’s negligence but that also of proximate cause. It was as follows: “Was Joseph Smith killed by the negligence of the defendant?” Not, as suggested in the cases criticised, “Was the defendant negligent or guilty of negligence?” While the third issue would lead to the very same result by eliciting an answer to the question whether the accident could have been averted by ordinary care on the part of the defendant, being in form as follows: “Could the defendant, by the exercise of ordinary care and prudence, have avoided the injury?” an affirmative answer to that inquiry did mean, as the Court instructed the jury, that an injury which could have been prevented by due diligence on the part of defendant company was due to its negligence. The Judge who tried the case below did not frame the issues and was not asked to remodel them. In instructing the jury upon them, in the shape in which counsel had left them, he told them properly that whether they passed upon the first or third issue the very same ultimate question was raised, whether the negligence of the defendant was the proximate cause supervening subsequent to the fault of the plaintiff. Some confusion has arisen out of the fact that, in some instances where the abstract principle that these issues *766might be framed lias been stated, the same mistake has been made, as here, viz., by embodying the question of proximate cause, as well as of defendant’s negligence, in terms in the first issue;, but it will be remembered that in Deans’ case it was immaterial to discuss the form of issues not submitted at all. The cases in which the suggestion that it might aid the jury in understanding questions of negligence in some instances to submit these issues or where that plan has been approved are McAdoo v. Railroad, supra; Denmark v. Railroad, supra; Bean v. Railroad, 107 N. C., 731; Blackwell v. Railroad, supra.
By reference to the case of Bottoms v. Railroad, 109 N. C., 73, will be found three issues that are framed substantially in accordance with the suggestion of this Court, and which the most illiberal critic would not venture to say led to confusion or to any illogical results. On the contrary, it can be seen at a glance that they were so framed as to aid the jury in understanding the several stages of the findings upon which the ultimate liability depended. It has been suggested heretofore that perhaps this system presented the questions involved so clearly as to afford opportunity to an unfair jury to give expression to their prejudices in the verdict, but never that it might, when properly understood, give láse to confusion. When verdicts are against the weight of evidence, or damages excessive, the corrective is in the power of the trial Judge to set aside verdicts-— a power which Judges who are fair and just do not hesitate to exercise — and of the Legislature to provide as far as may be for the selection of intelligent and unbiased j urors.
I concur with the Court in the ruling that the doctrine laid down in McAdoo’s case should be followed, but it is doubtful whether the language of the issues can be fairly construed so as to show that the charge of the Judge was in conflict with the principle there enunciated.