concurring: This is an appeal from a nonsuit in an action for wrongful death. It is elementary law requiring no citation of authorities that in such cases the evidence for the plaintiffs must be taken as absolutely true and with the most favorable inferences that can be drawn from it. If that were not so, a plaintiff would be deprived of his constitutional right to a trial by jury, since the jury might find the facts according to his testimony and in the light most favorable to him.
In no aspect of the case should the plaintiff have been nonsuited. If the engine was carrying no headlight at all, which must be taken as true on a nonsuit, then under Greenlee v. R. R., 122 N. C., 977, and Troxler v. R. R., 124 N. C., 189, which have been cited and approved very many times and which have been held unquestioned law up to date —see citations in Anno. Ed. — contributory negligence could not have availed as a defense. In Greenlee v. R. R., supra, it is held that the *651failure of a railroad company to equip its trains witb modem safety appliances — in that ease, self-couplers — was negligence per se, continuing to the time of an injury, and made the company liable even as to an employee, whether such employee contributed to the injury by his negligence or not. It was held that the company in such ease could not defend either upon the ground of contributory negligence or assumption of risk.
In Troxler v. R. R., 124 N. C., 189, the Court held, reaffirming Greenlee v. R. R., that “Eeason, justice, and humanity, principles of the common law, irrespective of congressional enactment and Interstate Commerce Commission regulation, require modem safety appliances to be used on a train, and when there is failure to do so the common carrier is guilty of culpable, continuing negligence which cuts off the defense of contributory negligence and the negligence of a fellow-servant, for such negligence is the caiosa causans even as to an employee.” For a stronger reason, the failure to have an electric headlight upon an engine running at great speed at night and in violation of law is such negligence as precludes the defense of contributory negligence. This has been held again and again as to engines rtmning at night without an electric headlight. These cases are familiar to every lawyer. Among the more recent are Shepherd v. R. R., 163 N. C., 522; Powers v. R. R., 166 N. C., 599, and there are many others.
In the very recent case of Powers v. R. R., 166 N. C., 601, the Court held that “running a train at night without & headlight is continuing negligence. Lloyd v. R. R., 118 N. C., 1010; Mayes v. R. R., 119 N. C., 758; Mesic v. R. R., 120 N. C., 491; and Willis v. R. R., 122 N. C., 905. The Legislature has adopted that rule by making the failure to carry a headlight negligence per se. By Laws 1909, ch. 446, 3 Fell’s Eev., 2617, all railroads are required to carry electric headlights upon their locomotives upon their main line, as this was, and by 3 Pell’s Eevisal, 3753 a, a violation of that requirement is made a misdemeanor. This Court has always held that any act of a common carrier which is a violation of law is negligence per se
It is uncontradicted here that this engine was running on the main line between New Berlin and Farmers (and if it was not, that is a matter in defense), and the failure to carry a headlight of at least 1,500-candle power being made an indictable offense by Eevisal, 3753a, the engineer and the defendant were both guilty of manslaughter. It is impossible that the defendant should not be civilly liable for damages for an act for which it is responsible to answer on the criminal docket.
While we must take the evidence of the plaintiff as true, it is not amiss to say that the engineer, who was a witness for the defendant, testified. as follows: “They use electric headlights on the road from Wilmington to Florence (which is where this accident occurred). 1 *652did not have an electric headlight that night. I had an oil light.” He went on to say that on this night he could have “seen ahead 30 or 35 feet,” and that he was going 35 miles an hour. The conductor of that train also testified that “On the engine there was an oil headlight ... an oil headlight like that would not distinctly illuminate 30 feet ahead of me. I would judge that it would throw a light about 30 feet— something like that. I would not say exactly.” The fireman also testified that it was an oil headlight, and that it was his business to keep it clean.
W. H. Jones, the roadmaster, also testified for the defendant that “An engine with an oil headlight will disclose an object 25 feet away.” S. M. Beasley, also a roadmaster and witness for the defendant, testified that an electric headlight can be seen 6 or 8 miles, and that with such a light a lever-car could be seen by an engineer 300 feet away probably. The evidence for the plaintiffs, which must be taken as true, is that the •electric headlight could have been seen by the*parties on the lever-car from 2 to 5 miles away and that the lever-car could have been seen by the engineer with an electric headlight three-quarters of a mile off.
Even if we take the defendant’s evidence as true, this engine was “running wild,” that is, it was an extra, not running on any schedule and was being run at mignight from 30 to 35 miles an hour on the main line, in violation of law without an electric headlight and with an oil light which could be .seen only some 25 or 30 feet away. If we take, as we must, the plaintiffs’ evidence 'to be true, the engine was running 50 dr 60 miles an hour without any headlight or sidelights whatever. The judge might well have told the jury that if they believed the defendant’s ■own testimony the company and the engineer were running in violation of law on the main track without an electric light and were all guilty •of manslaughter, and that in this action the only question was as to the amount of damages.
It was settled by this Court in Deans v. R. R., 107 N. C., 686, that notwithstanding a trespasser was lying asleep on a track, the railroad company was responsible if the engineer by proper watchfulness could have discovered him in time to have avoided killing or injuring him. This has been followed ever since. In Pickett v. R. R., 117 N. C., 632, it was said'that this principle was derived, from Davies v. Mann, 10 M. & W., 545, and that “The party who has the last clear opportunity of avoiding the accident, notwithstanding the negligence of hi.s opponent, is considered solely responsible for it,” citing 2 S. & R. Neg., 165. Ever since this has been the uniform law recognized in this State. It has been applied in cases like Arrowood v. R. R., 126 N. C., 629, where the deceased was a trespasser lying down on the track, and the defense set -up was that owing to the road winding around the mountain the engineer •could not see him by reason of the smokestack, and the fireman was *653busy, but the Court held that if the engineer and fireman were not sufficient lookout the defendant should have had a third man for that purpose. It was applied in Clark v. R. R., 109 N. C., 430, where the deceased was walking along the railroad, and indeed further back, in Troy v. R. R., 99 N. C., 298, where the Court affirmed the present writer, then on the Superior Court Bench, in holding that though walking on the track by a trespasser would constitute contributory negligence, it would not bar recovery if the engineer by reasonable care could have avoided the injury.
The decisions are uniform that in cases of injury to a trespasser on the track there should be a third issue submitted, “Whether, notwithstanding the contributory negligence of the plaintiff, the defendant could with reasonable care have avoided the injury,” and that the burden of this issue is upon the defendant. If, therefore, the Greenlee and Troxler cases and the long line of decisions in approval thereof should be overruled, and if, further, we could disregard the statute which makes the failure of the locomotive to carry an electric headlight of at least 1,500-candle power an indictable offense, and should overrule the decisions which uniformly hold that when an act is committed in violation óf a statute the defendant cannot excuse itself by pleading contributory negligence, and treating this as simply a case where the deceased was a trespasser on the track, still the burden of proof would be on the defendant on the third issue to prove that, notwithstanding the "contributory negligence of plaintiffs’ intestate, it could not by reasonable care have avoided.killing him.
It is not shown by plaintiffs’ evidence that he was forbidden to go on the track, and the burden was on the defendant to show that fact, and the jury might not have believed it. But if it were admitted that the rules forbade him to go on the track with a lever-ear at night, he could have been in no worse case than a trespasser, and the burden was on the defendant to show that with reasonable care, such as the use of an electric headlight, running at an ordinary rate of speed and blowing at the crossings, the defendant could not with a reasonable outlook have avoided killing the intestate. Whatever the obedience which should be paid to the rules of the company, they are not of such superior authority to the statutes of the State that a violation by an employee of a rule of the company entitles the defendant to disregard the requirements of law as to headlights and reasonable care in keeping an outlook, or that it entitles the defendant to consider that the deceased was outlawed and that it owed him no duty.