dissenting: I can see nothing in this record that legally 'excuses the conduct of the intestate or that takes the case out of the rule, long established by this and many other courts, that one who uses the tracks of a railroad com*574pany as a footway, for bis own convenience, wbetber as trespasser or licensee, must look and listen for approaching trains, and the engineer bas tbe right to presume, though he sees him walking along the track, and even to the very last moment when it is too late to save him, that he will step from the track and save himself, provided there is nothing in his appearance indicating a state of helplessness, as, for example, a foot-traveler on a trestle, or in some other position where he cannot safely leave the track, or one apparently deprived of his senses of sight and hearing, or known by the engineer to be deficient in his mental faculties and not then capable of. taking care of himself. "With these well known exceptions, the rule has been invariable and uniform in all jurisdictions, that a railroad track, wherever and however situated, is a place Of danger and affords ample notice to any one who uses it, that he must look both ways and listen for approaching trains, and take care of himself.
The question as to the liability of the defendant has never been determined, with the exceptions already noted, by examining the conduct of the engineer, but solely with reference to that of the person who may be on the track ahead of the train, if apparently in possession of his^ faculties and senses and able to protect himself from harm.
There is not the slightest question in this case as to the mental condition of the intestate being normal. It is admitted 'that he was walking on the track and able to leave it at any moment, if he had actually looked and listened and thus had become aware of the approach of the train, and the plaintiff’s whole case is bottomed upon the fact that he did not think the side-track, upon which he was injured) would be used by the coming train. All tracks are laid for the use of the railroad company, and they may go upon them at any time, at their will and pleasure, without previous .notice to the public of their intention to do so. Otherwise the running of trains would be regulated by those who use its tracks as trespassers’ or implied licensees, and not by itself. It would be gross negligence for a company so to conduct its business, and we would not hesitate to so hold, if any injury resulted therefrom. The *575public safety requires — yes, demands — tbat it be allowed perfect freedom in tbe use of its tracks. Private convenience, in tbis respect, must yield to. tbe public good, tbe public convenience, and tbe public safety. But tbis Court and many others bave beld tbat the fact of bis not expecting a train on tbe siding is no excuse, and does not except bis case from tbe general rule. A court of tbe highest authority has said: “Tbe track itself, as it seems necessary to iterate and reiterate, is itself a warning. It is a place of danger. It can never be assumed tbat cars are not approaching on a track, and tbat there can be no danger from them.” Tbe true principle cannot be stated more clearly or more strongly. But tbis Court has stated tbis rule with equal clearness and applied it most rigidly. In High v. R. R., 112 N. C., 385, a leading case on tbis subject, which has been approved over and over again, it appeared tbat tbe plaintiff, a woman wearing a long poke-bonnet which totally obstructed her vision, was walking on a side-track, supposing tbat tbe approaching train would take tbe main track, “as they usually did,” but it so happened tbat on tbe particular occasion it did not, but used tbe side-track, and it was beld to be clear tbat she could not recover, as she bad no right to speculate on tbe course the engine would take. Tbis is what tbe Court said with reference to tbe facts, which are in every essential respect like those we bave here: “If tbe plaintiff bad looked and listened for approaching trains, as a person using a track for a footway should in tbe exercise of ordinary care always do, she would bave seen that'tbe train, contrary to the usual custom, was moving on tbe siding. Tbe fact tbat it was a windy day and tbat she was wearing a bonnet, or tbat tbe train was late, gave her no greater privilege than she would otherwise bave enjoyed as licensee; but, on tbe contrary, should bave made her more watchful. There was nothing in tbe conduct or condition of tbe plaintiff tbat imposed upon tbe engineer, in determining what course be should pursue, tbe duty of departing from tbe usual rule tbat tbe servant of a company is warranted in expecting licensees or trespassers, apparently sound' in mind and body and in possession of their senses, to leave tbe track till it is too late to prevent a collision,” *576citing Meredith v. R. R., 108 N. C., 616; Norwood v. R. R., 111 N. C., 236. And those eases fully sustain tbe correctness of tbe proposition. They both bold that when on tbe track, tbe absolute duty of tbe pedestrian is to look and listen, if be can see and bear, and it is not at all modified by tbe fact of its being a side-tr.ack instead of tbe main line. We repeat that tbe public could not be safely and adequately served upon any other principle. If trains are to be stopped to await the pleasure of foot-passengers in leaving its tracks, when they can step off so easily and avoid injury and not obstruct tbe passage of trains, tbe company cannot perform its public duty as a carrier, and tbe public convenience must give way to private interests, contrary to tbe maxim of tbe law.
In Meredith’s case tbe party injured was on tbe side-track and not expecting tbe train to run on that track, but on another. In this connection let it be said that tbe same principle applies to trespassers and licensees. It was said in Meredith’s case: “Actual or implied license from tbe railroad company to úse tbe track as footway would not relieve him from tbe consequences of failing to exercise ordinary care. Tbe license to use tbe track does not carry with it tbe right to obstruct the road and impede tbe passage of trains,” citing McAdoo v. R. R., 105 N. C., 140. We may also remark that all of those eases bold that tbe speed of tbe train can make no difference, because tbe pedestrian, if be exercises due care, can escape danger as well in tbe one case as in tbe other. High v. R. R. and McAdoo v. R. R., supra. But Glenn v. R. R., 128 N. C., 184, is also decisive of tbe question. It is another ease where tbe .plaintiff stepped from one track to a side-track, thinking that be was safe there, as tbe train would not run on that track, and therefore be turned bis back to tbe approaching train, which be knew was coming, as be beard its whistle, and did not look or listen. Held, that be could not recover. This Court unanimously said: “The railroad track itself was a warning of danger, made imminent by tbe approaching train. It was then bis duty to keep bis ‘wits’ about him and to use them for bis own safety. He knew or ought to have known that be was a trespasser, and it was bis duty to have gotten out *577of the way of the train. The defendant was under no- obligation to stop its train at the sight of a man on its track.” The Court further said that it was apparent to the engineer that the plaintiff was in full possession of his faculties and could take care of himself, and the engineer had the right to presume that he would leave the" track in’ time to avoid injury. “That he did not do so was his own fault, and he should suffer the consequences of his folly.” See, also, Syme v. R. R., 113 N. C., 558. There was a plain duty resting upon the plaintiff’s intestate to look and listen and not to take any chances, because he may have supposed that the company would not use one of its tracks. “According to the principle declared in all of the cases, the question of liability is not to be solved by any reference to what the defendant may have done or omitted to do, but by the conduct of the plaintiff, and if the latter would not see 'when he could see, or would not hear when he could hear, and remained on the track in reckless disregard of his own safety, the law adjudges any injuries he may have received to be the result of his own carelessness. Parker v. R. R., 86 N. C., 221; Meredith v. R. R., 108 N. C., 616; Norwood v. R. R.,. 111 N. C., 236; Syme v. R. R., 113 N. C., 565; Stewart v. R. R., 128 N. C., 518; Wycoff v. R. R., 126 N. C., 1152; Sheldon v. Asheville, 119 N. C., 606; Ellerbe v. R. R., 118 N. C., 1024; Lea v. R. R., 129 N. C., 459; Bessent v. R. R., 132 N. C., 934.
The decisions in other States are overwhelmingly against the principle that circumstances like those we have here take the case out of the general rule, and it is held that no custom of the railroad company to run its trains according to a certain schedule, or to use one track and not another, or to run its trains at certain times in one direction (east) and at other times in another (west) will excuse one using its tracks from looking and listening, or requires the engineer to presume that he has not done so, but, on the contrary, it is held that he is within the zone of danger however and wherever the track is located. R. R. v. Hart, 87 Ill., 529; Morgan v. R. R., 116 C. C. A. (196 Fed. Rep., 449); Kinnare v. R. R., 57 Ill., 153; White v. R. R., 73 N. Y. Suppl., 827; Smith v. R. R., 141 Ind., 92; Boyd v. *578R. R., 50 Wash., 619. Many other eases might be cited, some of them being in defendant’s brief.
The Court said in Morgan v. R. R., supra: “It is altogether probable that he acted on the daughter’s statement that the trains did not come down that track; but he had no right to do so. Which of the tracks would or should be used for its various trains was, of course, a matter for the exclusive determination of the railroad company.” It was held in Rich v. R. R., 31 Ind. App., 10, that a traveler using a railroad track has no right to confine his precautions to his knowledge of the schedules and customs of the company, but must take due care against the approach of “extra trains” and even “wild trains,” those which are expected as well as those not expected to use the track on which he is walking. And in White v. R. R., supra, the Court stated that the accident was due entirely to the plaintiff’s want of proper care for his own safety in relying upon his expectation^ which was according to the railroad company’s usage, “that the train by which he was struck would not come upon the track. He must look out for all trains, and any other rule, it was said, would measure _ his conduct by the altogether too liberal rule of chances and risks, and would impose upon the railroad company too rigorous and burdensome responsibilities,” regardless of the inconvenience to the public arising from operating its trains under any such handicap.
The company owed the intestate no legal duty to keep the switch lock in repair, so that its trains would be held to the main track. It did owe the duty to its passengers to see that its track was in proper condition; but not to him. Nor was there any duty to notify him when the side-track would be'used. His plain duty was to act upon the presumption that it might be used at any time. Besides, the railroad company was not guilty of any negligence with respect to the switch, as it was tampered with-by somebody and broken, without any opportunity of the defendant to inspect and repair it. A freight train had just passed by it on the main track, when it was in good order. What is’ called a side-track in this case is not an unused track, but is really a “pass-track,” that is, one by means of which trains running in opposite directions can pass at that point. *579One is side-tracked and tbe other passes by' on the main line. So that intestate bad no right to believe that a train would not pass over the side-track. The question, therefore, is narrowed to this, Which has the superior right to the use of the track, the railroad who owns it and is required to operate its trains for the benefit of the public under certain penalties and liabilities for its neglect, or a trespasser, or even a licensee, who walks on the same for his own convenience, especially when, as in this case, the pedestrian is not bound to use it, but leaves a beaten path on the side of the main track for that purpose, and as matter of choice? This question is not hard to answer, and the preferential right of the railroad company must be admitted.'
The Court, in its opinion, concedes the general rule, that a person using a railroad track must “look and listen,” but says that the duty may be qualified by the attendant facts and circumstances. There is no such qualification in a case like this one, and the cases cited for this position relate either to crossings, when the view is obstructed or no signals given (Stanly v. R. R.); or to some duty owing to a passenger (Ray v. R. R., 141 N. C., 84); or to employees having a right to use the track (Sherrill v. R. R., 140 N. C., 252); Lassiter v. R. R., 133 N. C., 244) ; or to flying switches or shunting of cars, where a person entitled to use the track is injured thereby (Farris v. R. R., 151 N. C., 483; Johnson v. R. R., ante, 431; Wilson v. R. R., 142 N. C., 333; Hudson v. R. R., 142 N. C., 198) ; or to persons on trestles or helples's on the track (Snipes v. R. R., 152 N. C., 42); or where trains are run without lights or signals in the night-time (Hammett v. R. R., 157 N. C., 322; Purnell v. R. R., 122 N. C., 832. But in all of those cases there was some legal duty owing to the injured party which was neglected. Not a one of them touches the facts of this case, as I think, but all can be referred to a well recognized principle of the law, which does not apply to a trespasser or mere licensee walking along the track, in broad daylight and in full possession of all his faculties, with the power and capacity to look and listen, with an unobstructed view, and, too, with notice by the sound of the whistle, which he heard, that a train was approaching. Besides, *580there was, nothing here to modify the general rule that a man on the tracks should look and listen, for the company was proceeding rightfully with its train along one of its tracks, without any negligence on its part.
Although the company was not in any legal fault, it is required by this decision to look out for foot-passengers, nevertheless, and to give them timely warning, so that they may leave the track.
Suppose it was doing the unexpected or unusual thing of running on its own side-track. It had the legal right to do it; and in the exercise of a legal right there can be no wrong.
There is nothing in the evidence to prevent the full operation of the ordinary rule requiring track walkers to look out for trains. We have said very recently that even where a traveler on a highway at a crossing has been misled by the negligent act of a railroad company, and is exposed to injury by reason thereof, it does not absolve him of the duty to exercise due care to avoid injury, that is, such care and regard for his own safety as the circumstances and surroundings would naturally and reasonably lead a man of ordinary prudence 'to use, and if his situation is suggestive of danger,' he is required to use such care as is proportioned to the risk or hazard, making allowance, of course, for the conduct of the railroad company or its servants, in so far as it has reasonably affected his own.. But at last he must use ordinary care, whatever the situation may be. Johnson v. R. R., ante, 431. The pnly care he -could use in this case, or the least he could have exercised, was to look and listen for approaching trains.
Let us suppose that the train had taken the side-track, under an order from the dispatcher and without the knowledge of the intestate, and the switch had been set to the side-track, instead of being tampered with, in execution of the order, and plaintiff had been killed, as he would have been, can it be said that he was not required to look and listen, simply because he did not expect the train on the side-track, but presumed that it would stay on the main line? Surely not. ' He had no greater right or privilege, in his situation, than the ordinary track walker who takes the chances as he did.
*581My conclusion is that the case falls directly and fully within the principle of High v. R. R. and the other cases already cited, and the present decision of the Court, therefore, conflicts with them. I admit that the decision is not in conflict with Bessent v. R. R., 132 N. C., 934; Morrow v. R. R., 147 N. C., 623; Beach v. R. R., 148 N. C., 153, and the many cases in our reports which are like them, and while it recognizes the principles as there stated and applied, and concedes, that those eases were properly decided, it fails to extend the same principle, which is thus recognized, to the facts of this case, when it is equally applicable to them.
In Beach’s case we said: “A railroad track is intended for the running and operation of trains, and not for a walkway; and the company owning the track has the right, unless it has in some way restricted that right, to the full and unimpeded use of it. The public have rights as well as the individual, and usually the former are considered superior to the latter. That private convenience must yield to the public good and public accommodation is an ancient maxim of the law. If we should for a. moment listen'with favor to the argument and eventually establish the principle that an engineer must stop or even slacken his speed until it may suit the convenience of a trespasser on the track to get off, the operation of railroads would be seriously retarded, if not practically impossible, and the injury to the public might be incalculable. The prior right to the use of the track is in the railway as between it and a trespasser who is apparently in possession of his senses and easily able to step off the track.” And in Morrow’s case: “If he (the pedestrian) actually saw the train or heard it as it approached him, and failed to clear the track, if he had reasonable time to do so (as he had in this case) he was guilty of such negligence as defeats his recovery.”
The killing of the intestate was the direct result of his own fault, and there is no culpability on the part of defendant.
BeowN, J., concurs in this opinion.