concurring. I concur in tbe opinion that there should be a new trial in this case, but do not assent to some of tbe positions stated in tbe principal opinion as ground for the decision. Tbe testimony in tbe record, as I view it, presents two theories on which liability of defendant may be predicated.
1. By reason of a negligent act of tbe conductor of tbe train, in failing to warn plaintiff so as to beep bim out of tbe line of fire.
2. A negligent act, tbe cause of tbe injury, on tbe part of Yan Amringe, tbe baggage master, in lending LaMotte tbe pistol, with which be attempted to shoot tbe negro.
Tbe first view seems to have been presented to the jury without valid exception. On tbe second, tbe court charged tbe jury: “If tbe jury find from tbe evidence, by its greater weight, that one LaMotte called for a pistol, with wbieb be assaulted Sam *304Calloway, and the defendant’s servant, Yan Amringe, the baggage master, in compliance with LaMotte’s request, gave to La-Motte a pistol with which to assault Calloway, knowing, or having reasonable grounds to believe, that LaMotte was going to use the pistol for that purpose, and that after LaMotte got the pistol he did attempt to assault Calloway, by pointing the same at him .and trying to shoot him, and this assault upon Calloway caused Calloway to draw his'pistol and attempt to shoot La-Motte, and, in shooting at LaMotte, shot the plaintiff, Penny, then the jury should answer the first issue, Yes; and this for the reason that it was the duty of the agents and employees of defendant company to do all in their power to prevent assaults and disturbances which were likely to bring on an assault or fight, and it does not matter that Yan Amringe did not personally make the assault, if he gave the pistol to LaMotte with which to make the assault, and LaMotte did make the assault, both LaMotte and Yan Amringe would have been guilty of an assault with a deadly weapon, as there are no accessories before the fact in misdemeanors. And if the jury further find from the evidence, by its greater weight, that the assault would not have been made by Calloway but for the wrongful act of Van Amringe and LaMotte, then the jury should find that the plaintiff’s injury was proximately caused by the neglect and wrongful conduct of the defendant, through its servants and employees.” And again: “If the jury shall find by the greater weight of the evidence that a difficulty was pending between LaMotte and Calloway and Yan Amringe, the baggage master on the train, with a knowledge of the purpose for which LaMotte wanted it, handed him a pistol with which he should shoot Calloway, and that LaMotte took the pistol out on the platform, and, pointing the same towards Calloway, tried to shoot him, but could not discharge the pistol, and this caused the said Calloway to fire the shots at La-Motte which struck the plaintiff, then the jury should answer the first issue, Yes.”
Defendants except to this charge and assign for error what is, to my mind, a perfectly valid objection. There was testimony introduced tending to show that from the attitude and conduct of the negro, either LaMotte or Yan Amringe, the baggage mas*305ter, bad the present right to use a pistol in the legitimate protection of tbe train and its passengers or themselves, and thus presenting and requiring the view that the act of Yan Amringe may have been free from fault. Under certain conditions the doctrine of self-defense is available in actions of negligence, as in other eases. Laidlaw v. Sage, 158 N. Y., p. 90.
Even if it is conceded that these excerpts correctly express the view tending to inculpate, the charge nowhere refers to the opposing and necessarily correlative view which tends to excuse defendant company, and to my mind the failure to present the case in this respect constitutes reversible error under the principles declared and upheld in Jarrett v. Trunk Co., 144 N. C., p. 299, and Meredith v. Coal Co., 99 N. C., p. 576. I am inclined to think that the charge, as giyen, is positively erroneous in that it fails to say that if Yan Amringe, wrongfully and in breach of his duty to safeguard the passengers, supplied the pistol, etc. The portion of the principal opinion, from which X am compelled to withhold my assent, is the position maintained, as I interpret it, that there is no evidence tending to show that the act of Yan Amringe, in lending the pistol to La-Motte was wrongful; or, that if it was, there is no evidence to show that such act was the proximate cause of the injury. On the first proposition, the negro, Galloway, examined as a witness for the plaintiff, testified, in respect to himself, that he was the aggrieved party throughout the occurrence. That he was wrongfully assaulted in the car by LaMotte, and the conductor without justification, shoved him down in the seat, and La-Motte, with an open knife, said, “If he (the negro) breathed, he would cut his damned throat.” Shortly thereafter as the train slowed for Leland witness asked them to let him get out, LaMotte holding the knife on him. That when the witness got on the ground, he asked LaMotte if he wanted to cut witness, and LaMotte replied, “Yes, God damn you, I will cut your heart out,” and by that time LaMotte called for a gun and witness was close to the car steps. LaMotte snapped the gun in his face, and witness began to run back and was feeling in his pocket for his gun. That LaMotte snapped the gun on witness *306three times before witness could draw Ms, running backward all the time, when witness got Ms gun out and fired twice (the shots that caused the injury). Record, p. 45, and again p. 46.
“Q. Where did LaMotte go when he asked for a pistol?” Ans. He went back to the door of the second-class car where I had just come out, and it seems time he got to the door somebody gave him a pistol and he came back. The first thing he did after he got the pistol he snapped it in my face.” The testimony showed that the original difficulty occurred in one compartment of a car, divided into a baggage car and coach for second-class passengers; that the coach connected with the baggage car by a door, and the evidence tended to show that Yan Amringe was cognizant of all the facts. Speaking to the question of such knowledge Yan Amringe himself testified: “My attention was called to the loud talking, and when they pulled out from Navassa, I went through the partition to the baggage car door. I noticed a crowd — not a crowd, either; it seems that Captain LaMotte and Captain Carmon were talking to a negro fellow down by the stove.
“Q. Who was Captain LaMotte? A. The conductor for the Coast Line, dead-heading to Florence to bring out a train; he was not on duty at the time. They were talking to a negro. I noticed there was going to be some trouble, and thought it best to go back in the baggage car and await developments. As we were pulling up to Leland (it is not far from Navassa to Leland, it didn’t take long), when we were slowing up, I went back, opened the door and looked in as I was going in the car. Let’s see — I want to get that straight — I went in the car and met Mr. LaMotte coming in there — that is the way I think. I went in the second-class car and Captain LaMotte came in at the door. I went in and got my pistol, as I expected trouble. He came in and^I had my pistol in my hand. He asked for my pistol, and I gave it to him.”
• “Q. What occurred from the time you gave the pistol to Captain LaMotte, where did Captain LaMotte go, and where did you go, and what did you see and what was done ? A. Captain La-Motte went ahead of me out of the car, and stood on the platform of the second-class car, and on the end facing Wilming*307ton — on the rear end of the train towards Wilmington — on the second-class ear. Ton see, when he came out of the car, he just turned around and went to the steps, he didn’t go across; he went on the second-class platform to the left, and he stood up on the top step, and was aiming his pistol at the colored man, trying to shoot him, but the pistol wouldn’t go off on account of having a little safety valve — it had a couple of triggers, and you had to pull both of them to make it fire; it wouldn’t go off; he had it aimed at the colored man.” And again:
“Q. Where was the colored man? A. He had gotten off of the train, as the train slowed up, and was standing at the edge of the swamp, about forty or fifty feet from the rear end of the second-class coach — about the same distance as that door — about forty or fifty feet — between forty and fifty feet to the right of the second-class ear.” And further:
“Q. Were you close enough to hear what was said by Captain Garmon and Captain LaMotte, if they had said anything? A. Yes, I reckon so. Do you mean inside the coach? Q. Eight there on the platform at the time you and Captain LaMotte went out of the door of the car. A. I could have heard anything said — I was on the platform.”
In the presence of this testimony, tending, as it does, to show that the conductor and LaMotte made an unlawful assault upon the negro and that LaMotte was in the wrong throughout, and Yan Amringe must have known it, I think that the position assumed in the principal opinion, “that there is no evidence that Yan Amringe knew or had reason to believe that LaMotte borrowed the pistol for an unlawful purpose, cannot be upheld. The counsel for defendant company, as I understood their earnest and able argument before us, made no such claim and it cannot, to my mind, be for one moment sustained. And the second position referred to, “that the act of Yan Amringe in lending the pistol to LaMotte was not the proximate cause of the injury to plaintiff which was caused by a stray bullet fired from Calloway’s pistol,” cannot be sustained as a legal proposition, assuming as it does to have any significance, that the act of Yan Amringe was not lawful. The law of proximate cause as affected by the intervening acts of an independent agent was *308fully laid down by the Court in Harton v. Telephone Co., 141 N. C., p. 455, et seq., and in which it was held among other things as follows:
“3. There may be more than one proximate cause of an injury, and when a claimant is himself free from blame and a defendant sued is responsible for one such cause of injury to plaintiff, the action will be sustained, though there may be other proximate causes concurring and contributing to the injury.”
“4. The proximate cause of the event must be understood to be that which in natural and continuous sequence, unbroken by any new and independent cause, produces that event, and without which such event would not have occurred. Proximity in point of time or space, however, is no part of the definition.”
“5. The test by which to determine whether the intervening act of an intelligent agent which has become the efficient cause, breaking the sequence of events put in motion by the original negligence of the defendant, is whether the intervening act and the resultant injury is one that the author of the primary negligence could have .reasonably foreseen and expected.”
“6. Except in cases so clear that there can be no two opinions, among men of fair minds, the question should be left to the-jury to determine whether the intervening act and the resultant injury were such that the author of the original wrong could’ have reasonably expected them to occur as a result of his own negligent act.”
When this case was again before the Court (146 N. 0., p. 429) on a fuller statement of the testimony, the Court was. unanimously of the opinion, “that the facts showed that the-original or primary negligence had been insulated by the acts and conduct of an independent, intervening agent, and recovery was therefore denied,” but the general principles laid down in the first opinion was in no wise questioned or denied and under these principles, if it is established that Yan Amringe wrongfully gave LaMotte a pistol, knowing, or having reason to believe he was about to project a pistol duel in a crowd or in close proximity to a train and passengers and one of them was injured, though with the adversary’s pistol, this should, in my opinion, be considered the proximate cause of the injury. Cer*309tainly on this evidence there is no wrong done defendant, in submitting tbe question of proximate cause to tbe jury. As I have heretofore said, there is testimony to the effect that the lending of the pistol was entirely justifiable and I think the defendant is entitled to have this view presented to the jury under a correct charge.
Clark, C. J., concurs in concurring opinion.