dissenting. It is with a feeling of deep regret and much hesitation that I am forced to' enter my most earnest dissent from the opinion of the Court. I wish I could agree with the majority of the Court that its opinion does not conflict with our former rulings, but I' am utterly unable to do so with those cases before me. That plain words may have a hidden legal meaning utterly at variance with the ordinary usage of the language, and which I did not intend them to have, and never dreamed they could have, when I used them, is beyond my comprehension. Eeeling as I do, I would be untrue to myself were I to concur in an opinion which to my mind destroys the principle of our recent decisions, is in direct violation of the statute, and flatly contravenes the letter and tire spirit of the Constitution.
The rule as now laid down, stripped of its incidents, is as follows: “That the Court may withdraw an issue from the jury and direct an affirmative finding of contributory negligence against tbe plaintiff, whenever it thinks that the evidence of the plaintiffs own witnesses is sufficient to prove the fact in controversy.” That is all there is in it, dilute it as we may. It is true the Court says provided there is no conflict in the testimony, but such a want of conflict does not of itself prove the issue. There may be only one witness, or fifty witnesses, swearing to the same thing, and unless they swear to enough to prove the fact in issue, neither the Court nor the jury can find it to be true.
Tbis line of reasoning forces me to the conclusion which this Court has recently so repeatedly and emphatically announced, but wbicb it now seems, at least- partially, to repudiate, that the Court can never direct an affirmative finding of fact. To do SO', it would be necessary for the Court to pass directly upon the weight of the evidence, and to find that it was of sufficient weight to overcome the negative presump*648tion always arising from the burden of proof. In other words, it would be saying, in the teeth of the statute, that a fact which the law required to be proved had been “sufficiently proven.” And yet Mr. Justice Eueches, speaking for a unanimous Court in Bank v. School Commissioners, 121 N. C., 109, says that this can not be done, using the following words: “But no matter how strong and uncontradicted the evidence is in support of the issue, the Court can not withdraw such issue from the jury and direct an affirmative finding. To do this is to violate the Act of. 1796—sec. 413, of The Code.”
In White v. Railroad, 121 N. C., 484, 489, the same Justice, again speaking for a unanimous Court, says: “The Court can. never find, nor direct an affirmative finding of the jury. The most the Court can do is to instruct the jury, where there- is no conflict of evidence, that if they believe the evidence they should find yes or no, as the case may be.”
In Wood v. Bartholomew, 122 N. C., 177, 186, Justice PuRCi-nss, again speaking for a unanimous Court, says: “The burden of the issue of contributory negligence is on the defendant. It is an affirmative issue and can not be found by the Court. It must be determined by the jury.”
Other opinions of the same learned Justice contain expressions to the same effect. The italics are my own. These emphatic expressions were neither casual nor obiter, but were used in the decision of questions directly raised and in answer to the strenuous contentions of counsel urged in- repeated and elaborate arguments.
This Court at the last term, after most careful consideration, speaking without dissent through Mr. Justice Montgomery, in Crews v. Cantwell, 125 N. C., 516, 519, after intimating that the burden was really on the defendant, uses the following language: “The instruction then of his Honor *649was erroneous, for as the burden of proof was assumed by the plaintiff, the Court could not withdraw the issue from the jimy. Bank v. School Commissioners, 121 N. C., 109. In that case, Justice Fueches, delivering the opinion, of the Court, said: 'But no matter how strong and uncontradictory the evidence is in- support of the issue, the Court can not withdraw such issue from the jury and direct an affirmative finding/ 33 It should be noted that in that case the Court based its judgment solely upon the fact that the plaintiff had assumed the burden of proof, and made no allusion whatever to the fact that the only evidence was that of the plaintiff.
Mr. Justice Claee has used similar language in speaking for the Court, and does not wish now either to modify or withdraw it.
Speaking for a unanimous Court, in Sherrill v. Telegraph Co., 116 N. C., 655, he says, on page 657: “But when the plaintiff makes out a prima facie case, then¡ to instruct the jury that the evidence rebuts it and overcomes it, is to invade the province of the jury and violates chap. 452, of the Acts of 1796 (Code, sec. 413), which forbids an expression of opinion by tire Judge upon the weight of the evidence.”
I may be pardoned for citing some of the opinions of the Court written by myself. They are in plain, words, plainly setting forth the views I was known to possess and intended to express. Whatever other faults they may have, my opinions are neither the intangible mists of summer nor the shifting winds of March.
In Spruill v. Insurance Co., 120 N. C., 141, during my first term upon the bench, it is said, for a unanimous Court: “Where there is no evidence, or a mere scintilla of evidence, dr the evidence is not sufficient in a just and reasonable view of it to warrant an inference of any fact in issue, the Court should not leave the issue to be passed upon by the jury, but *650should direct a verdict against the party upon whom the burden of proof rests. That the verdict should be directed against the party upon whom rests the burden of proof, is the essence of the rule. * * * If the verdict of a jury is, in the opinion of the Court, against the .weight of evidence, it can be set aside, and to- the proper exercise of this discretion there can be no objection. But to permit the Judge to pass upon the sufficiency of the evidence necessary to rebut a legal presumption without submission to the jury, would infringe upon the exclusive powers of the jury. * * * The rule laid down in some authorities that wherever the Judge would be justified in setting aside the verdict as against the weight of evidence, he would be equally justified ini taking the case from the jury and directing’ a verdict,can not receive our sanction. It is not the law in North Carolina, and never can be under our present Constitution. ‘The ancient mode of trial by jury/ guaranteed by the Constitution-, is that at common law, and is none the less the right of the citizen than it was of the subject. Direction of a verdict and granting a new trial are essentially different in nature and effect. The one regulates the trial by jury, tire other denies it; the one recommits the case to the jury, the other takes it away completely; the one merely reopens the case for a fairer trial, while the other ends it without redress, save tire precarious method of appeal, where findings of fact can be reviewed only from the meager notes of tire Judge, and the uncertain recollection of counsel. The mere fact that the Judge can never, save by waiver or consent, render a verdict, but can direct it only in the name of the jury, shows the intent and spirit of the law. These principles are ‘fundamental/ and ‘a frequent recurrence’ thereto is of constitutional obligation.” This case appears to have been cited in more than twenty different cases, including the opinion of the Court from which I am respectfully dissenting.
*651In Cox v. Railroad, 123 N. C., 604, tbis Court,in reviewing Spruill’s case, says: “Had the question not been,' again presented by counsel, it would almost seem needless to, repeat' what we! have so often said, that the burden of proving negligence rests upon the plaintiff, while the onus of showing contributory negligence rests upon the defendant. In both cases this must be shown by a greater weight of the evidence, and of this relative weight the jury alone can determine. A negative presumption necessarily accompanies the burden, and remains until the burden is lifted or shifted by direct admissions or a preponderance of proof. * * * Where there is evidence tending to prove negligence on the part of both parties, the case must aliuays be submitted to' the jury, and it malees no difference if this evidence appears in, the-testimony of the plaintiff. The Court may say to' the jury that there is no evidence tending to prove a fact, but it can never say that a fact is proved. * * * It is the settled ride of this Court that a verdict can never be directed in favor of the party upon whom rests the burden of proof, who in all cases is considered to' have the affirmative of the issue, whatever may be its form. Though this rule was discussed and reaffirmed in Spruill v. Insurance Co., 120 N. C., 141, it did not have its origin in that case, but in Wittkowsky v. Wasson, 71 N. C., 451, where the doctrine was distinctly laid down in the following words, quoted from the opinion of Weils, T., • in the Court of Exchequer Chamber: 'There is in every case a preliminary question which is one of law, viz: Whether there is any evidence on which the jury could properly find the question for the party on whom the burden of proof lies. If there is not, the Judge ought to withdraw the question from the jury and direct a nonsuit if the onus is on the plaintiff, or direct a verdict for the plaintiff if the■ onus is on the defendant/ In other words, the verdict must in either event be *652directed against the party on- whom lies the onus, and by necessary implication cam neiver be directed in his favor. * * The burden of proving contributory negligence is always upon the defendant. Therefore a direction in his favor, based in any degree upon the contributory negligence of the plaintiff, would be a direction in favor of the party upon whom rested the burden of proof, which is directly opposed to the uniform current of our decisions. If there had been any reasonable doubt that the burden of proving contributory negligence rested upon the defendant, it has been set at rest by chap. 33, of the Laws of 1887. * * * It, therefore, follows that om a motion for a nonsuit the Court can consider only the evidence relating to the negligence of the defendant, and if there is more tiran a scintilla tending to prove such negligence, the motion must be denied and tire case submitted to the jury.” That case cites a large number of authorities which it is needless now to recite. Can there be any question as to its meaning ? There was a single dissent.
In Bolden v. Railway, 123 N. C., 614, this Court, with a single dissent, says: “By force of statute, as well as a settled rule of decision, the plea of contributory negligence is an affirmative defense in which the burden, both of allegation and proof, rests upon the defendant. It is true that contributory negligence may be shown by the evidence of 'the plaintiff, but whether the weight of that evidence is sufficient to overcome the presumption in his favor, arising from the burden of proof, is a question for the jury. The action of the plaintiff in going upon the bridge was argued as contributory negligence, but if it be viewed as an implied assumption of risk, the same rule will apply. Both doctrines are alike as being in the nature of a plea of confession and avoidance, inasmuch as they are affirmative defenses set up to excuse the negligence of the defendant. As such, the burden *653of proof is in both cases up on the defendant, and an issue can be found in its favor only by a jtury
In the subsequent case of Cogdell v. Railroad, 124 N. C., 302, it is said by a unanimous Court, that: “Contributory negligence and assumption of risk, being in the nature of pleas in confession and avoidance, axe affirmative defences, and can not be considered on a motion for nonsuit.” Citing Bolden v. Railroad, supra. It is useless to further cite the large number of cases wherein this Court has said that the Court could never direct an affirmative finding. If it did not mean “never” when it said it in the above cases, I suppose it did not mean it in the others. I meant it then: and mean it now.
The rale now adopted by the Court is an adaptation of the Federal rule; and while it may find a home with us by adoption, it is not to the manner born, and is the legitimate offspring neither of our Constitution nor of our- laws. The Federal Courts, as well as those of some few of the States, still adhere to the English practice of allowing the Court to express an opinion upon the weight of the evidence, that is, the Court under this rule may in all cases say to the jury what it thinks ought to bei their verdict. This practice, which may seowe to explain some decisions in those tribunals where it still exists, has been repudiated by a large majority of the States, and was positively prohibited by statute in this State, as far back as 1196. This prohibition has been brought forward in successive compilations, and is still in force as sec. 413, of The Code, which reads as follows: “No Judge, in giving a charge to the petit jury, either in a civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, such matter being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case, and declare and explain *654the law arising thereon.” This distinct line of demarcation between the powers of the Judge and the jury, established in the childhood of our State, and remaining in full force for more than a hundred years, has become a fundamental part of “the law of the land.”
I am aware that there are some cases tending to' sustain the rule now adopted by tire Court, but they were decided before I came upon the bench, and are in direct conflict with our later as well as our earlier decisions. The earliest case cited by the Court is that of Meredith v. Railroad, 108 N. C., 616, deeided in 1891, which cites upon this point only the cases of McAdoo', Parker and Daily. In McAdoo’s case, all the issues were submitted to the jury, and none found by the Court. In Daily’s case, decided in 1890, while the Court below held that the plaintiff, who was an idiot, could not recover, on account of his contributory negligence, this Court held that there was no evidence tending to prove the negligence of the defendant. Parker’s case was decided before the passage of the Act of 1887, chap. 33, which expressly provides “that in all actions to recover damages by reason of the negligence of the defendant where contributory negligence is relied upon as a defense, it shall be set up in the answer and proved on the trial.” I am also- aware that there have been two or three dicta to the same effect, but I do not feel bound by them. I am not responsible for all that may be said in an opinion from which I do not dissent, but only for such matters as are necessarily involved in the decision of the case.
Dicta are- the overflows of judicial learning, and, like the freshets in our streams, are always dangerous and generally harmful. Occasionally they add fertility to the fair fields of jurisprudence. But more often they tend to cut gullies through well-established principles, or to create stagnant *655ponds of doubt, whose mist and -malaria are equally dangerous.
The tendency of Judges to invade the province of the jury is shown throughout the entire history of the law, 'and the survival of the system in full vigor as the foundation stone of Anglo-American jurisprudence, is in itself tire strongest proof of its inherent merit. Courts of equity, from the first, refused to recognize the system, and we have recently seen to what extent a trial by jury can be evaded by proceedings in injunction, and in the nature of contempt. Courts of Admiralty, following the principles of the civil law, have also discarded the jury; and it is a significant fact that they also have refused to recognize the doctrine of contributory negligence, always apportioning the damages in. proportion to the comparative negligence of the parties.'
In view of this tendency, this Court has felt it its duty more than once to assert the independence of thei jury. In Cable v. Railroad, 122 N. C., 892, 900, the Court says: “This Court does not favor the growing practice of taking ■cases from the jury. The jury is a constitutional body, as much so as the Court itself, and in the exercise of its peculiar power’s of equal responsibility and independence.”
In State v. Shule, 32 N. C., 153, the Court says: “We think there was error in the mode of conducting the trial. * -x- * q'heirq was a departure from the established mode of proceeding, and the wisest policy is to check innovation at once;’ particularly, as in this case, it concerns the Trial by jury’ which the ‘bill of rights’ declares ‘ought to- remain sacred and inviolable.’ This innovation is that, instead of permitting the jury to give their verdict, the Court allows a verdict to be entered for them, such as it is to be presumed the Court thinks they ought to render, and then they are asked if any of them disagree to it? Thus making a verdict for *656them, unless they are bold enough to stand out against a plain intimation of the opinion of the Court.” The Court then proceeds to lay down the rule substantially as stated in Spruill v. Insurance Co., supra.
In State v. Allen, 48 N. C., 251, 262, Judge PeaRsoN., speaking for the Court, says: “It is our duty to see to it that the trial by jury shall remain ‘sacred amd inviolable,’ and if ■upon the circuits there has grown up any practice encroaching upon the trial by jury as ‘heretofore used,’ although such practice may, to some extent, have been sanctioned by decisions of this Court, it is our duty to put a stop to it; and while we will not allow a jury to encroach upon the province of the Judge, i. e., to declare and explain the. law and undertake, by an abuse of their power, to decide questions of law, on the other hand we are equally solicitous to see that the Court shall not commit usurpation upon ‘the true office and provmce of lie jury/ Repetition of error can never justify the violation of a positive enactment of a statute, much less the infringement of a fundamental principle upon which our social existence is declared to rest. An error may have crept into our practice by reason of the Judges not having attached due importance to the distinction between the condition of tilings in England, whence we are in the habit of taking our notions of law, and the condition of things here, where the trial by jury is. protected both by tlie Constitution and by legislative enactment. A Judge is not at liberty to express an opinion as to- the sufficiency of the evidence. When there is a defect, or entire absence of evidence, it is his duty so to instruct the jury; but if there be any competent evidence, relevant and tending to prove the matter in issue, it is ‘the true office and province of the jury’ to pass upon it, although the evidence may be so slight that anyone will exclaim, ‘certainly, no jury will find the fact upon such insufficient evidence.’ *657Still the Judge has no right to put bis opinion in tbe way of the free action of tbe jury, even should be deean it necessary' to do so, in order to prevent them from being misled by the-arguments of counsel or their own want of apprehension. It is true, juries will sometimes find strange verdicts, acting under the influence of ignorance or of prejudice, but in general, juries are honest, and it is considered safer for the lives- and property of the people to submit to -the inconvenience of particular cases of this hind than in, anywise to allow the ■Judge to encroach upon ‘the true office and province of the jury/ This partial evil is in a great measure obviated by allowing tbe Judge to grant a new trial in all cases (except where a party is acquitted upon a criminal charge) whenever he thinks the jury have found against the weight of the evidence.”
I have no apology to make for quoting so much of this-opinion. It is a great opinion, of a great Judge, fully equal in importance to that of JELohe v. Henderson, about which we-have recently heard so much. I have given to the latter opinion the deliberate assent of my judgment and my conscience,, and have carried it to its fullest legitimate extent. In doing, so I have nothing to retract, but I feel equally bound by the; underlying principles of State v. Allen. Are the constitutional rights of the officeholder any more sacred than the constitutional guarantees of the citizen ? I think not. I understand the opinion of the Court to admit that there is sufficient evidence tending to prove the negligence of the defendant, and. to base its judgment purely upon the contributory negligence-of the plaintiff, which it presumes to have been shown beyond! the possibility of a reasonable doubt.
It should be born© in mind that much of the evidence upon ■. which the Court apparently relies as showing contributory.' *658negligence, 'was brought out by the defendant on cross-examination.
That driving a train at a greater rate of speed than that .allowed by law is at least evidence of negligence, is well settled. In Railway v. Ives, 144 U. S., the Court says, on page 418: “Indeed it has been held in many cases that the running of railroad trains, within the limits of a city at a rate of speed greater than is allowed by’ an ordinance of such city, is negligence per se (citing authorities). But perhaps the better and more generally accepted rule is that such an act on the part of the railroad company is álways to be considered by the jury as at least a circumstance from which negligence may be inferred, in determining whether the company was or was not guilty of negligence.”
The opinion of the Court disposes of the case at bar in the following words: “And it seems to us that there can be no doubt but what the intestate of the plaintiff was also guilty of negligence, if the evidence be true and every word of it believed. This issue is then not one that must be found by a jury, but one that may be found by the Court, it does not present a question where reasonable: men might put different constructions upon it, and come to the conclusion that the plaintiff’s intestate was not guilty of negligence.” By this I presume the Court means that the negligence: of the deceased was -.the ultimate proximate cause. This remarkable finding, ■ coupled with the unqualified assertion that no reasonable man •can put a different construction upon it, becomes still more remarkable in view of the fact that two members of this Court have put a different construction upon it. This ■ exquisite but unconscious satire upon the rule itself, well illustrates its inherent fallacy. I do not mean to' be flippant or to •treat the opinion of the Court with 'any disrespect, but surely ■'it is a legitimate argument to show that it necessarily involves *659a reductio ad adsurdum. If reasonable men cam, not take a different view of this matter, it follows that the two Judges who have taken a different view of it can not be considered as reasonable men. But suppose two other Judges should in some other case have the misfortune to differ from a majority of the Court as to the effect of the evidence, they also would come under the ban. This would leave the remaining member of the Court far above his associates upon the lonely pedestal of solitary infallibility. Suppose he too should fall from his high estate, what would become of the Court ? And yet this Court must say that no> reasonable man can draw but one conclusion from the evidence, or the case must go to the jury. Why not let it go to the jury, as was said in Allen’s case, should be done in all cases of doubt ? The Court is not only putting itself in the place of the jury, but is deciding the case by a majority verdict.
Another' exceedingly able and interesting opinion is the dissenting opinion of Justice Bynum in Wittkowsky v. Wasson, 11 N. C., on p. 458. The present attitude of the Court renders that opinion almost prophetic.
The opinion of the Court in the case at bar says that the evidence introduced by the plaintiff must be taken as true, as far as he is concerned. This absolutely reverses the reason of the rule. A party is estopped from impeaching the credibility of his witnesses, but not from denying the correctness of their statements. Moreover, much of the evidence was brought out by the defendant on cross-examination. On a motion for nonsuit, the defendant admits the truth of the plaintiff’s evidence., which must be construed in the light most favorable to the plaintiff. So construing the evidence, can anyone say that if the engine had been going at not more than four miles an hour, the maximum speed allowed by the ordinance, the engineer could not have stopped in time to prevent *660the killing ? As the intestate was going’ in the same direction, if be were walking at the rate of three miles an hour, the train would have gained on him only one mile in an hour, The intestate is presumed to have known the law, and he had a right to assume that the defendant would obey the law. He had a right to' presume that the defendant would give him the ordinary signals required by law, and would not run him down and crush the life out of him without giving him some slight warning. Surely a human life is still worth something ••-the pulling of a bellcord, the opening of a whistle. We arc constantly told that we should be shocked at the excessive verdicts of juries. That is often the case, but there are other things which also touch my judicial sensibility. A human form mangled beyond recognition, and an immortal spirit hurled into eternity without a moment’s warning, are a greater shock to the instructed conscience of a Christian age than any verdict rendering merely pecuniary damages. This may be called mere sentimentality. Be it so. I can never hope to attain that high plane of judicial temperament where 3 shall be entirely free from human sympathy. In addition to the weight of reason and authority in favor of drawing the line at affirmative verdicts, another advantage is that it is a natural boundary, seen and known of all men. Where the dividing line between great principles are marked by nothing more substantial than stakes, which can easily he put down, and as easily pulled up and moved, the principles themselves are in imminent danger.
I deeply feel the importance of this decision, and may overestimate its clanger. I hope I do>, but it seems to me to involve ultimate results fax reaching and dangerous in their nature. With such strong convictions and sincere apprehensions, I can not afford to cast away the moorings of the past, and turn *661my opinions loose to float without chart or compass, the aimless driftwood of a shoreless sea.
Clask, J.,dissenting. The jury system, whatever its defects, is the best which the wisdom of the ages has yet evolved for the ascertainment of the truth of disputed issues of fact. It is the bulwark of the liberty and the rights of the citizen. The line between the province of the Court and of the jury was distinctly run and marked by our ancestors in the Act of 1796, now Code sec. 413. Bynum, J., in Wittkowsky v. Wasson,, 71 N. C., 458, ably and prophetically pointed out the evils of the judiciary passing beyond that line and invading the province of tire jury as the sole triers of the facts. It is to be deeply regretted that his views did not then prevail. It is a still further invasion of the province of the jury, and contrary to a long line of the decisions of this Court (as Mr. Justice Douglas has shown) to permit a Judge to direct an affirmative finding, which is nothing less than the Court passing upon the evidence and holding that a fact is sufficiently proved. It is the province of the jury to disbelieve uncontradicted evidence if they attach no faith to' the witnesses. If there is no evidence in support of the party having the burden of proof upon an issue, the Judge may direct a negative finding for its absence, or if the uncontra-dicted evidence is in support of the contention of the party having the burden of proof, the Court may tell the jury that “if they believe the evidence” to find in favor of that side, but the Judge can not even in such case direct an affirmative finding, for that is to pass upon the credibility of the witnesses and the weight of the evidence, which the jury alone is authorized to do.