dissenting : When a person is walking on the track the engineer is to presume that upon sounding the signal he will get off and is not called on to slacken speed or stop (Meredith v. Railroad, 108 N. C., 616) unless he recognizes him in time as an insane or deaf man, or unless it is a child without sufficient discretion. Bottoms v. Railroad, at this Term.
If a man, in a paroxysm or from drunkenness, or asleep, is lying on the track and the engineer sees him in time to avert the injury and does not do so, the company is liable. Why? Because the negligence of the man does not authorize the engineer to kill him or cripple him and if, after discovery of his helpless condition, when made in time to avoid injury, the man is killed or crippled, such killing or crippling is 'wanton or reckless and the company is liable, though of course the negligence of the party on the track continues up to the very moment of the impact.
• Now, take this state of facts as found by the jury. The man is helpless, lying prone upon a railroad track and the engineer, by the exercise of ordinary caro in keeping a proper lookout, could have discovered the helpless man in time to avoid killing or crippling him, but because he was not using ordinary care and was negligent in that duty the engineer does not in fact see the helpless man in time and runs over him: is not the company liable? But it is said that the company owes.no duty to the man lying-helpless on the track. This plea is the same as one made of old, “Am d my brother’s keeper?” And we are told that that brother’s blood “cried from the ground.”
In Clark v. Railroad, 109 N. C., 430, it was held (it is true by a divided Court) that the railroad company was liable for killing a man on a short trestle, though the man was walking. The company was held responsible, though the engineer on a rapidly moving train could hardly have *768had time to calculate exactly where the trestle was and that at the respective rates the man and engine were moving the engine would overtake the man exactly at that spot where he could not easily have stepped off. That case is a precedent and entitled to due weight as such. If the company is held to liability for striking a walking man (who is expected to step off) because the engineer cannot calculate that lie will overtake the man at a particular dangerous spot, for a stronger reason should the company be liable when the man is down on the track and the engineer can know that he is in a dangerous place with less trouble than making a calculation and by the exercise of no other faculty than the use of his eyes in keeping the ordinary lookout which his duty to the passengers and train in his charge requires him to keep any way.
Population is increasing and likewise the speed and rapidity of railroad trains. It will' be more and more impossible to keep people off’ the track as the country settles up. Their being there is no license to kill or crqrple them on sight. The railroad companies have the right of way over their own tracks, but they must use it with reason and with a regard to human life. “Sic utere tuo, ut non alienum laeclas.” If the man is walking on the track he is reasonably to be expected to get off in time, especially if the whistle is sounded. If he does not, clearly the company is not liable! The man is negligent and the company shows neither wantonness nor recklessness. If the man is crossing the track, he must look and listen. If he does not and the engine strikes him, it is clearly his fault and there is no recklessness or wantonness on the part of the engineer, for as the man has only five feet to go clearly the engineer could not see him in time to avoid striking him. If the party struck is a mere child, or live stock, and the engineer could have seen them in time to avoid *769injury, and does not, the company is liable because of its own negligence in not keeping a proper lookout. Its failure to keep such lookout is such recklessness as makes it liable, for it “owes no duty” to the live stock or the child. If the man is down on the track he is as helpless and as little to be expected to get off as a little child or live stock. There is no more deadly a machine than a modern sixty or one hundred-ton engine driving across the country on its narrow ribbon of steel at sixty miles an hour. Whatever it strikes fairly is killed as surely as if struck by a cannon-ball. Commerce requires the free use of the track by these deadly machines. But the hand upon the throttle-valve must be steady and a lookout for danger well kept. This is common sense and justice. It can never be made a part of the law of the land that these Goliaths of mechanism can kill or crush whatever they shall find in their path. Live stock and children they must look out for. If by failure to do this they are injured the company is liable. The safety of a man lying on the track cannot be insured. He has no business to be there. But if the engineer on a passing train, by ordinary care in keeping the lookout which his duty to the safety of the train requires, could see .the man (as the jury find) in time to avoid killing him and does not do so, this negligence in one vested, with so important a trust is recklessness which renders the company liable notwithstanding the negligence of the party struck by the engine.
Respect for the doctrine of stare decisis forbids us to so soon overrule the decisions of this Court in the late cases of Deans v. Railroad, 107 N. C., 686; Clark v. Railroad, 109 N. C., 430, and others on that line.
The decision in Deans v. Railroad, supra, imposed no additional duty on railroad companies. The company was, and is, liable for a failure to keep a lookout if thereby injury *770is caused to its passengers, to live stock or to a little child. That decision merely held that the same failure to keep a. proper lookout would make the company liable as to a man lying in a helpless condition on the track. This does not, as argued', abolish or affect the doctrine of contributory negligence. The failure of one in charge of so powerful, dangerous and rapid moving a machine to keep a proper lookout is recklessness which makes the company liable whenever the juiy find that, by a proper lookout, the helpless man could have been discovered in time to avoid killing him. Human life is worth that much consideration if it is worth any thing.