Tbe evidence for tbe plaintiff, wbicb must be accepted as true for tbe purpose of nonsuit, establishes tbe negligence of tbe defendant in tbat it was running its train in tbe night-time without a bead-ligbt, and it is conceded tbat tbe judgment of nonsuit cannot be sustained except upon tbe ground of contributory negligence.
There are two valid objections to coming to this conclusion.
Tbe first is that, while after much discussion tbe rule was adopted tbat a judgment of nonsuit might be entered if it clearly appeared from tbe evidence of tbe plaintiff tbat be was guilty of contributory negligence, this rule has never been extended so as to permit tbe consideration of evidence offered by tbe defendant tending to prove contributory negligence.
In this case tbe negligence attributed to plaintiffs’ intestate is tbat be was upon tbe track in violation of tbe rules of tbe company, and there is nothing in tbe plaintiffs’ evidence to show tbat a rule was in existence or tbat tbe intestate was at tbe time of bis death violating any rule.
Tbe burden of tbe issue of contributory negligence was on tbe defendant, and in order to sustain this burden it introduced a rule of tbe company wbicb forbade tbe use of tbe band-car at nigbt without tbe permission of a superior officer, and it also introduced tbe officer to prove tbat be bad not given tbe permission. If this evidence coming from tbe defendant was not believed by the jury, tbe issue of contributory negligence could not have been answered against tbe plaintiff, and tbe jury alone has tbe right to say whether or not tbe evidence is true.
*648This principle is vital under a system wbicb makes jurors triers of tbe fact, and a departure from it would invest tbe judge with tbe power to pass on tbe weight of tbe evidence and to determine tbe fact.
Tbe second is tbat if it be conceded tbat tbe intestate was guilty of negligence tbe question of proximate cause was for tbe jury, and ought to have been presented to them either under a separate issue or under an instruction tbat although tbe plaintiff was upon tbe track in violation of tbe rules of tbe company, and was therefore negligent, tbat be would be entitled to recover damages if, notwithstanding tbat negligence, tbe jury found as a fact tbat if tbe defendant bad bad a headlight tbe intestate would have been discovered in time to avoid tbe injury, or tbat if tbe headlight bad been present tbe plaintiffs’ intestate would have seen it in time to take tbe car from tbe track.
Tbe evidence on tbe part of plaintiffs tends to prove tbat tbe track of tbe defendant in tbe direction from wbicb tbe train was coming was straight for a distance of 5 miles; tbat a headlight could have been seen at tbat distance; tbat those on the band-car were looking in tbat direction for tbe approach of a train; tbat if there bad been a headlight they could and would have seen it in time to take tbe band-car from tbe track; and tbat with a headlight tbe engineer could easily have seen tbe car in time to avert tbe injury.
In Heavener's case, 141 N. C., 245, tbe Court approved an instruction tbaf “If tbe jury should further find from tbe evidence tbat if there bad been a proper light on tbe engine, or if tbe bell bad been ringing, tbe intestate would have bad notice of tbe approaching train in time to escape tbe danger, and if tbe plaintiff by reason of not having such notice or warning was injured, then such failure to have tbe headlight or other proper signal was continuing negligence and would be tbe proximate cause of tbe injury,” and this was affirmed in Shepherd v. R. R., 163 N. C., 520.
If tbe plaintiffs’ intestate was negligent in violating a rule of tbe company, was bis negligence greater than tbe negligence of a person who is killed while upon tbe track in a state of voluntary drunkenness ? It would seem not, and in Griffin v. R. R., 166 N. C., 626, it was held tbat tbe question of tbe contributory negligence of one killed upon tbe track while intoxicated was for tbe jury, tbe Court saying: “We have tbe facts in evidence tbat tbe engine was without any headlight; furthermore, tbat it ran over and billed tbe intestate. ... We have, therefore, in evidence both tbe negligence and tbe injury. . . . It is immaterial whether tbe intestate was a licensee or a mere trespasser. The defendant owed it to him and to all other persons, whether on tbe track rightfully or wrongfully, to have bad a headlight upon its engines in order that tbe engineer might be enabled to discover, not only human beings, but any obstruction upon tbe track. . . . There is evidence in tbe *649record from which, the jury may find, if they see fit, contributory negligence upon the part of the intestate; but the evidence is not of that character as will justify the Court in any view of it to sustain a motion to nonsuit upon that ground.”
This case has an important bearing upon the question before us, because it establishes the principle that although the intestate was negligent, the defendant owed him the duty to have a headlight, “whether on the trade rightfully or wrongfullyand that he could not be declared guilty of contributory negligence as matter of law.
If so, why does not the same rule prevail in this case, as the most that can be said of the conduct of plaintiffs’ intestate, if he was violating a rule of the defendant, i.s that he was wrongfully on the track?
In Tyson v. R. R., 167 N. C., 216, the plaintiff’s intestate was killed by a train running without a headlight, and the issue of contributory negligence was answered in favor of the defendant.
A recovery of damages was sustained, and Justice Brown says, in discu.ssing the question as to whether there was evidence to support the finding that notwithstanding the negligence of the intestate, the defendant’s engineer by the exercise of ordinary care could have avoided the injury: “There is evidence in this case that the engineer, by keeping a watchful lookout, with a good headlight, could have seen the intestate in the position described by the witnesses, and, going up grade, could have stopped his train within 50 yards. There is evidence that he had a very poor oil headlight, and it was about dusk at the time when his train killed the intestate.
“Taking all of these facts together, we think there is sufficient evidence to have gone to the jury for their consideration to the effect that if the engine had been properly equipped with a proper headlight, and the engineer had kept a diligent lookout ahead of him, he could have discovered, by reasonable care, the condition of the intestate, and could have stopped his train in time to have saved his life.”
Again, the Court said in Cullifer v. R. R., 168 N. C., 311: “It is well settled in this State that where the plaintiff is guilty of contributory negligence the defendant must exercise ordinary care and diligence to avoid the consequences of the plaintiff’s negligence, and if by exercising due care and diligence the defendant can discover the situation of the plaintiff in time to avoid injury, the defendant is liable if it fails to do so.”
In McNeill v. R. R., 167 N. C., 390, the Court concludes the opinion with this statement: “The theory upon which recoveries are sustained when a person upon the track is killed or injured by a train running in the night without a headlight, although not apparently helpless, is that the absence of the headlight is negligence, and as its presence would probably give notice of the approach of the train by throwing light on *650the track and upon the person, the failure to have the light is some evidence of proximate cause.”
In other words, if it is admitted that both the defendant and the intestate of the plaintiff were negligent, the negligence of the plaintiffs’ intestate does not bar a recovery unless it was the proximate cause of the injury, and the question as to whether it was the proximate cause is for the jury, if two reasonable minds could come to different conclusions upon the question; and here there is evidence that although the intestate was negligent, if the defendant’s train had been running with a headlight he would not have been injured, because the headlight would have been seen, if the evidence of the plaintiff is to be believed, in time to take the car from the track, or the engineer could with a headlight have discovered the intestate in time to avoid the injury.
In Boney v. R. R., 155 N. C., 107, the plaintiff’s intestate, an engineer, was killed by running into an open switch, and at the time of his death he was violating a rule of the company by running his train at a speed of 30 miles an hour, when the rule required that he should not approach the switch at more than 6 miles an hour. A recovery of damages was sustained upon the ground that although he was negligent, the defendant could have averted the injury by the exercise of ordinary care. The Court said: “If the intestate knew that there was no light at the switch, and was running in excess of 6 miles an hour, he was negligent; but it is not every act of negligence on the part of the plaintiff that is contributory negligence in its legal sense. It is not contributory unless it is the real cause of the injury; nor is it so if the defendant, by the exercise of ordinary care, can avert the injury, notwithstanding the negligence of the plaintiff.”
Reversed.