concurring: In State v. Horner, 139 N. C., 603, counsel for the State referred to the defendant as an “outlaw.” This was held not to be ground for a new trial. Here the Judge charged at request of plaintiff that the plaintiff was -not an outlaw. Certainly the defendant cannot be hurt thereby. He does -not contend that the plaintiff was outlawed.
If there was an incorrect intimation in the charge that the plaintiff could recover punitive damages, this was corrected after the charge was concluded, by the Judge refusing such prayer when asked by the plaintiff, and the express charge given that the plaintiff could not recover punitive damages. This is not the case of contradictory instructions in the same charge. No intelligent jury could fail to understand that this was the final instruction of the Court. The jury are presumed to be competent and intelligent men — as competent in the discharge of their office of triers of fact as'the Judge is taken to be in instructing them upon the law. If so, this last instruction of the Court, made after the charge had been concluded and in refusing a special instruction asked by the plaintiff, cotild not have failed to impress the jury that punitive damages could not be given by them. But is it entirely clear that the negligence of the defendant was not so gross as to amount to wilful and wanton neglect of duty'? Was there not, indeed, criminal negligence on its part ? The use of the public street by defendant in that mode had been so long persisted in, and was so glaringly dangerous, that it might well be that punitive damages would be required to prevent a continuance of the danger. The street had been laid out as such by .authority of law. Its primary use, therefore, was for citizens on foot or in carriages. The defendant had a right to use it only subject to the primary right of the *347public. Tbe defendant bad 15 to 21 tracks, laid across tbis public street, most of wbieli it used for shifting purposes, as it bad five shifting engines there. One or two tracks, perhaps, were used for carrying freight to the warehouse, or to vessels, at the wharf. The defendant could, and should, have elevated the tracks it used for that purpose above the street, as it has done with the adjacent track used by it for passengers.
And the other tracks used for shifting purposes should have been moved farther out, to a shifting yard that would not be crossed by a public street which, by a decree of Court, has been laid out, as this street had been, for the use of the public. The defendant added to its great negligence in maintaining at that point 15 to 21 tracks, crossing a public street on 'the same grade, not only by having no gates, but by having only one flagman for so many tracks,‘who could have been of no protection to the plaintiff at the crossing of a distant track. Besides, the flagman who was stationed midway these 20 tracks signaled the plaintiff to go ahead, and he was struck by a flying switch, the cars running backward, without a lookout, and in violation of a town ordinance requiring a watchman on a board at rear end of the car 12 inches from the ground.
Such conduct by the defendant practically compels the citizens needing to use that street to take their lives in their own hands and to “run amuck.” It is a practical denial and reversal by the defendant of the decree of Court which dedicated that- street primarily to the use of the public. The street thus crossed by so many tracks leads to the depot of the S. A. L. Eailway, and was greatly used by the public, both for passengers and in hauling freight, and for the ordinary passing to and fro of the public.
When the defendant’s track was laid out, some seventy years ago, population and business were small, and the revenues to the company were light. It was not dangerous at that time to lay the defendant’s track on a- level with the public street, nor did the defendant then have 15 to 21 *348tracks at this point. The railroad companies must take notice that with the great increase of population and of their traffic it has become criminally negligent to continue to cross on a grade at points where the number of those crossing and their own numerous trains make the use of the street or crossing dangerous to the public. Wilmington now has over 30,000 people, and in the near future will doubtless have 100,000 or more. The use of one of its public streets can not be interfered with by 15 or 21 railroad tracks with constantly moving cars and engines. The people of the city have a right to use their streets with safety. The.defendant has no right there except in subordination to the prior right of the citizens to the use of the streets. The defendant should remove its shifting tracks and place its other tracks above the street. This must necessarily be done sooner or later, and it is questionable whether it is not criminal negligence for railroads to fail to change their tracks and run above or below the roadway at such places as this. Last year the railways in this country killed, according to the published official reports of the United States Government, nearly 10,000 people, and wounded or crippled nearly 90,000 more — a total of nearly 100,000 killed and wounded in one year. So far as this vast amount of suffering and misery can be reduced by proper care — and the relative number killed and wounded in foreign countries is very far 'less — it is the duty of courts and juries to see that a neglect to do so is properly punished.
Throughout Europe railroads are very rarely permitted to cross a public road, even in remote country districts, and never in or near a town. In Connecticut, Massachusetts, and to some extent in New York, railroads have been compelled by statute to change their tracks so as to pass always above or beneath roads and streets used by the public, and to make the change, of course, entirely at their own expense. Such statutes have been held constitutional not only by the courts of those States, but by the Supreme Court of the Union. *349Railroad v. Bristol, 151 U. S., 556; Railroad v. Kentucky, 161 U. S., 696; Railroad v. Defiance, 167 U. S., 99; Wheeler v. Railroad, 178 U. S., 324; Railroad v. McKeon, 189 U. S., 509. See eases from State courts cited 140 N. C., at p. 229.
Now that their attention has been called'to it, doubtless these great corporations, with their great and abundant revenues, derived from the public, and with their constantly increasing number of trains, will feel moved by considerations of humanity, as well as by their own interest, to abolish grade crossings at such places as this and at all others where their longer retention will be inconvenient or dangerous to the public.