dissenting. The plaintiff was not a trespasser, but had been ordered by his superior to paint the switch target between the two tracks, where he was working when struck by the engine. While this target was four feet (less seven or eight inches for the fans or wings) from the rail, the projection of the car and steps, 29 inches, left but a few inches (11 or 12) of space. The defendant’s engine and cars' came *620down on© track and passed to plaintiff’s rear, and then came rapidly up another track, moving backwards with a car in front, without, ringing the bell and running at a high rate of speed — 10 or 15 miles per hour, according to the defendant’s own witness, and 25 to 30 miles an hour, according to the plaintiff’s witness — and struck him on the back as he leaned over to dip his brush in the paint, cutting a hole in his back and lacerating his shoulders and head and paralyzing his light arm. The plaintiff was preoccupied with his work, and could not be expected to look both to the front and rear, and keep up his work, too. It is in evidence that the rules of the company required the bell to* be rung to give notice to those at work on or near the track, and that this notice was customary. The plaintiff had a right to* rely upon the observance of the rules and the custom, both of which were known to him, and of course to the engineer, too. The engineer approaching from the rear could see the plaintiff 600 feet away on a straight track, preoccupied with his work. Under such circumstances, the rapid speed, and the failure to observe the rules and the custom by ringing the bell, were evidence of negligence to go to the jury.
The Court charged the jury that if the plaintiff was not put at work in a dangerous place, but was comparatively safe, and suddenly turned and got in the way of the engine when it was too late to stop it, the jury should answer the first issue “No.” The jury answered the first issue “Tes,” thereby finding that the engineer was negligent in not avoiding the injury by giving the signal required by the rules for the safety of those working on or near the track. The rules of the company were in evidence, and require the engineer, if any person is on or so* near the track as to be in danger, to ring the bell of his engine when shifting, and to blow the whistle if necessary, and to use every possible means to prevent an accident. There was also evidence that it was the *621custom always to ring the bell while running the engine for shifting at this passenger station.
The former opinion of the Court, 130 N. C., at page 346, says that the only error found in the trial below was in leaving it to the jury to determine whether the engineer, seeing the preoccupation of the plaintiff, and not giving signal to warn him, was negligent and the proximate cause of the injury. But surely all the above circumstances, the evidence of running 25 or 30 miles an hour, the failure to observe the rules and the custom to ring the bell, the sight by the engineer of the plaintiff 600 feet away, intent on his work, were properly submitted to the jury, especially when coupled, as they were, with the instruction that if the plaintiff was not at work in a dangerous place, but suddenly turned and got in the- way of the engine when it was too late to stop it, to answer the first issue “No.”
The target, according to the evidence, was four feet from the middle of the rail, and the fan which the plaintiff was painting when struck, extended 7 or 8 inches toward the rail, leaving the space 40 or 41 inches, while the step of the car extended 29 inches from the rail, reducing the space to 11 or 12 inches. The plaintiff, a tall man, when he leant over to dip his brush in the paint, occupied, he says, more than that space to the right. Relying upon the regulation and custom of shifting engines to ring the bell, he was struck from behind, while thus stooping, by an engine which, by some of the evidence, bore down on him at the rate of 25 miles an hour, and without giving any signal, as required. The plaintiff’s work was between two tracks, and he could not look both ways at once.
That we have not direct precedents in our Courts, is due to the fact that till recently an injury caused by the negligence of a fellow servant was not actionable. But there are many precedents elsewhere, cited in the very able brief of the de*622fendant’s counsel. In Erickson v. R. Co., 41 Minn., 500, 5 L. R. A., 186, it was held that one rightfully in close proximity to the track, employed by the defendant, was not required to look out for passing engines, as in the case of trespassers or licensees, but that the company owed him- the duty of "active vigilance” in giving proper signals and warnings of the approach of engines' and trains. The Court says: “The plaintiff had the right to rely on the continued performance of this duty, without the necessity, while engrossed in his work, of keeping constant lookout for approaching trains.” There are numerous cases to same effect which might be added.
That the plaintiff had the right to rely upon the custom to ring the bell is held in Stanley v. R. Co., 120 N. C., 514; Norton v. R. Co., 122 N. C., 936; Beach Cont. Neg., Sec. 67. The plaintiff was rightfully at his place, and even if he had not been, the defendant should have sounded its usual warning. McLamb v. R. Co., 122 N. C., 862; McCall v. R. Co., 129 N. C., 298.
I think Judge Hoke committed no error in leaving the matter to the jury, and that the petition should be allowed.
The whole evidence is not set out in this dissent, for it can very rarely be appropriate, since this Court has no power to review the action of the jury. All that is necessary is to set out only such part of the evidence as', taken most strongly for the plaintiff, would justify, or not, the submission of the disputed matter to the only tribunal which is authorized to decide issues of fact.
Douglas, J., concurs in the dissenting opinion.