dissenting: Plaintiffs sued to recover damages for the death of their intestate, caused, as they alleged, by the negligence of the defendant. -The evidence was to the effect that W. B. Horne- was, on 14 September, 1915, employed by defendant as foreman of an extra section force, and on the night of said day he rode on his lever- or hand-oar- with six other employees from New Berlin to Farmers station, about 4 miles distant, and remained at the latter place several hours, at his uncle’s home, on his own business. His shanty-car was at New Berlin. ' He started back to Farmers station about midnight on the lever-car, and when they had gone about one-half of a mile they were overtaken by an engine and plaintiff was killed by the collision. There was evidence that the engine had no light and had not given the usual signal at the crossing near by, and was running at a high rate of speed. There was evidence, on the contrary, to show that the engine was provided with all its lights, headlight, classification lights, and also two rear markers, and running 30 or 35 miles an hour, and that it gave all station and crossing signals. 'This engine was going from Wilmington to Ohadbourn to relieve another engine that had been disabled on a branch line, and there was evidence that it was properly equipped and in good condition, with headlight burning and brakes in proper order. The intestate had been forbidden to use a hand-car after dark, except by special authority or authority of the roadmaster, which he did not have that night, and he was not, at the time he was killed, transacting any business or performing any duty for the railroad company, but was on a visit to his uncle.
We will, in the consideration of the case, confine ourselves to so much of the testimony as is most favorable to the plaintiffs, according to the usual rule. Ridge v. R. R., 167 N. C., 510; Harris v. Guaranty Co., ibid., 624.
If we take plaintiffs’ own view of the evidence, we can see no error in the judgment of the court. The intestate had control and management of the lever-car on which he was riding. It was in his possession and was furnished to him for the purpose of better performing his work as section master, and he had no right to use it for his own private purposes. When he did so, he became a trespasser on the track of the *655company, and bad no greater right than any ordinary trespasser using the track as a footway, and perhaps less right, as he was obstructing the track under very dangerous circumstances, which were calculated to imperil his life and the lives of his coemployees, or helpers, and also the property of the company and the lives of those on its engines and cars. It has been said that a railroad company owes a greater duty to one on its track with its consent than it does to a trespasser, Boggera v. R. R., 64 S. C., 164; and especially would this be true as to one who is using its tracks in the night-time in open violation of its rule made for his own as well as the protection of other persons, and. of the company’s property. It does not ordinarily owe to him the duty of equipping or of running its trains in any particular manner or at any special rate of speed. R. R. v. Stegall, 105 Va., 538. A trespasser who uses the tracks of a railroad company, especially when he has been forbidden to do so, must look out for himself and take proper measures and precautions for l;is own safety, if he is not disabled and can do so. The following rules in such eases have been formulated by a careful and learned text-writer:
“It may be stated, as a general rule, that any one who goes upon the track or premises of a railroad company, except at a public crossing or in a highway, without the invitation or license of the company, express or implied, is a trespasser. . . . The general rule is that the owner or occupier of premises owes no duty to a trespasser thereon except to do him no willful or wanton injury. A trespasser is a wrong-doer, and it is a general principé of jurisprudence that the courts will not aid a wrong-doer. The fact that the trespasser is a wrong-doer does not, however, justify malicious, wanton, or willful maltreatment of him, and the failure to use reasonable care to avoid injury to him after the discovery of his danger may sometimes be sufficient evidence of willfulness or wantonness. But neither negligence nor willfulness can ordinarily be shown in this way where an adult or person apparently able to take care of himself is upon a railroad track, because the railroad employees have a right to assume, in the absence of anything to the contrary, that he will get off the track or take such other precautions as may be available to avoid injury to himself. ... A railroad company owes trespassers no contractual duty. Indeed, as already stated, the general rule is that it owes them no duty except not to willfully injure them. . . . What we have already said concerning the limited duty to trespassers applies to trespassers upon a railroad track. It is generally and, we think, correctly held that a railroad company is not bound to keep a lookout for trespassers upon the track. . . . As a general rule, the company’s employees may presume that one apparently able to do so will get off the track in time.” 3 Elliott on Railroads, secs. 1252 to 1258."
*656Of course, these principles have been modified by us where the trespasser is on the track either in a helpless condition or deprived of his bodily Or mental faculties in some way, so that he is not able to care for himself; but there are no such facts in this case.
The company was not bound to anticipate that the intestate would deliberately violate its instructions and use the car on its tracks after darkness had set in. He was, therefore, guilty of negligence,- and if there are any degrees of negligence, his may well be called gross, and plaintiffs have no right to say that the defendant should have looked out for him when he did not look out for himself, and was where he was not expected to be, with a dangerous obstruction, when he was killed.
Eut we will assume that defendant was negligent also, and treat the case as one of mutual negligence. It was no more than that, as, if defendant had no light, neither did plaintiffs’ intestate, and if he had provided himself with one, which he could easily have done, and should have done when using the track without permission or contrary to orders, this unfortunate accident would not have occurred. He knew,"or should have known, that the company had the right to use its track at any and all tim.es, and, even if there was no regular train scheduled for that particular time, that emergencies often arise when its engines and cars have to be brought into immediate use, as was the case here.
The track of a railroad, as it seems necessary to repeat, most emphatically, again, is always a place of danger, and any man who uses it for his own purposes, and especially when he has been positively forbidden to do so, should exercise the highest degree of care.and vigilance for his own safety, as we have so often said. McAdoo v. R. R., 105 N. C., 140; High v. R. R., 112 N. C., 385; Syme v. R. R., 113 N. C., 558; Exum v. R. R., 154 N. C., 408; Talley v. R. R., 163 N. C., 567; Abernathy v. R. R., 164 N. C., 91; Hill v. R. R., 166 N. C., 598; Ward v. R. R., 161 N. C., 180; Treadwell v. R. R., 169 N. C., 694, and Hill v. R. R., ibid., 740; and there are many other such authorities, but we have tried to cite some of the earliest decisions with some of the latest, so as to show that there has been a strict, steady, and unvarying adherence to the doctrine.
As especially applicable to plaintiff’s contention, and as fully answering it, we would direct attention to Beach v. R. R., 148 N. C., 153, where we unanimously held that: “A railroad track is intended for the running and operation of tx-ains, 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 a.s the individual, and usually (and reasonably) 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 *657tbe argument, and eventually establish tbe principle, tbat an engineer must stop, or even slacken bis speed, until it may suit tbe convenience of a trespasser on tbe track to get off, tbe operation of railroads would be seriously retarded, if not made practically impossible, and tbe injury to tbe public might be incalculable. Tbe prior right to tbe use of tbe track is in tbe railway (especially) as between it and a trespasser who is apparently in possession of bis senses and easily able to step off tbe track.” And in Treadwell v. R. R., supra, we said, in reference to tbe same kind of contention: “A court of tbe highest authority has said tbat where it is known, as it should be, tbat a railroad company’s right of way is being constantly used for its trains, and is at all times liable to be used for their running and operation in transporting freight and passengers, as a public carrier under tbe. highest legal obligation to serve tbe public diligently and faithfully as such . . . ‘the track itself, as it seems necessary to repeat with decided emphasis, is itself a warning. It is a place of danger, and a signal to all on it to look out for trains, and it can never be assumed that they are not coming on a track at a particular time when it is being used for tbe convenience of trespassers or licensees, and, therefore, tbat there can be no risk to a pedestrian from them.’ ”
We have specially referred to these cases, as it is insisted by plaintiffs tbat defendant’s engine was not making a regular trip, and, therefore, caught the intestate unawares. Engines do not run regularly without any cars, except in shifting yards or at stations. This engine was running “light,” as it is said in the case, to take the place of one on another line, which had in some way been disabled, and this illustrates what a dangerous place a track is, as at any moment, day or night, it may be used between the times fixed by the regular schedules, and for this reason it is always “live,” in the sense that an engine or a train may pass a given point at any time. If the intestate had taken any thought for his own safety, he would have carried either a lantern or some other device as a warning of his presence on the track, or not have used the track at all without or contrary to orders.
But we will assume that both the intestate and the defendant were negligent in more than one respect, and it then becomes a case of concurrent negligence, both acts of negligence uniting at one and the same time to cause or produce the result; and in support of this view we need cite only two oases decided by this Court. In McAdoo v. R. R., 105 N. C., 150, it appeared that the plaintiff was stricken by an engine while he was on, or near, one of the defendant’s tracks, and the Court said with reference thereto: “If the plaintiff had alleged that the defendant company, or its servants, had willfully, wantonly, purposely, or maliciously run an engine against and injured him, a very different *658question would bave been presented. In Manly v. R. R., 74 N. C., 655, tbis Court said: ‘When tbe injury arises neither from malice, design, nor wanton and gross neglect, but simply tbe neglect of ordinary care, and tbe parties are mutually in default, tbe negligence of botb being tbe immediate and proximate cause of tbe injury, a recovery is denied, upon tbe ground that tbe injured party must be taken to bave brought tbe injury upon himself.’ That case was subsequently cited with approval as to tbe first point in Rigler v. R. R., 94 N. C., 610, and in Walker v. Reidsville, 96 N. C., 382. See, also, R. R. v. Lowdermilk, 15 Ind., 120; R. R. v. Adams, 26 Ind., 76; 2 Woods H. L., 319.” And we held in Watts v. R. R., 167 N. C., 345, 346: “The nonsuit must clearly be sustained by reason of tbe plaintiff’s own negligence, existent to tbe very time of tbe impact; for, according to bis statement, be was under tbe car for bis own purposes, on a live track, engaged in tbe performance of no duty whatever, awake and in full possession of bis faculties, and utterly inattentive to bis own safety up to tbe very time of tbe injury. If it be conceded that tbe defendant was negligent in backing on tbe siding without signal, tbe case presents a typical case of contributory negligence, concurring with that of tbe plaintiff and barring bis claim for damages. Ward v. R. R., 167 N. C., 148.” But if tbe defendant was guilty of negligence, it was not actionable unless, as held in McNeill v. R. R., 167 N. C., 396, it was tbe proximate and not merely a concurring cause of tbe injury. Tbis is, of course, a very just doctrine, because no man will be permitted by tbe law to take advantage of bis own wrong, and if his own want of care proximately contributes to bis own hurt, or if it concurs with tbe wrong of some one else in doing so at tbe time tbe injury is received, tbe law denies a recovery by bim, attributing tbe result to tbe fault of botb.
We held in Hill v. R. R., 166 N. C., 592, that a motor-car — and tbe same rule, of course, applies to a lever- or band-car, as they are practically of tbe same make — moving on a track of tbe company in tbe night should be provided with proper and sufficient lights or signals that would indicate its presence on the track, and that for any injury caused by a failure to display a light or give other warning of its presence tbe company would be liable. But in that case tbe liability was based upon tbe ground that tbe person who bad run tbe car without a light was acting under tbe authority of tbe company, while here be bad no such authority, but was acting of bis own will, and really contrary to orders. We only cite that ease to show that tbe doctrine as to lights and signals applies to band-cars being run in tbe darkness, and tbe intestate should bave displayed a light or given some warning of tbe car being on tbe track, especially as it was there at an unusual time, when tbe company bad forbidden bim to use it. It is an admitted principle that “where a servant voluntarily, and of bis own motion, exposes himself to risks *659outside the scope of his regular employment, without or against the order of the'master, or vice-principal, and is injured thereby, the master is not liable.” 26 Cyc., p. 1224, and note 8. This text is supported by a great array of authorities to be found in the note. R. R. v. McWhorter, 115 Ga., 476; Green v. R. R., 85 Minn., 318; Parent v. Mfg. Co., 70 N. H., 199. We have made a similar ruling in Whitson v. Wrenn, 134 N. C., 86; Avery v. R. R., 137 N. C., 135; Stewart v. Carpet Co., 138 N. C., 64; Hicks v. Mfg. Co., ibid., at p. 329; Holland v. R. R., 143 N. C., 439; Patterson v. Lumber Co., 145 N. C., 45. “The employee is not absolved, in cases, of this sort, at least, of all obligations to have a proper care for his own safety and to work with prudence in the presence of known and observed. danger; nor is he free to disobey his employer’s orders, where such disobedience becomes the proximate cause of the injury, either sole or concurrent.” Hicks v. Mfg. Co., 138 N. C., 329. “A-servant who voluntarily, without request from the master, engages in work which he was not hired to perform assumes the risk of injury attendant thereon.” Parent v. Mfg. Co., supra; McGill v. Granite Co., 70 N. H., 125. “Eules and orders are promulgated and are to be enforced for the protection of the public, of fellow-servants, and of the employer’s property, and 'cannot be disregarded or annulled by an employee with impunity. The latter cannot disobey orders upon the ground that, in his opinion, there is no reason for their further observance. When one employed to do a designated kind of work, or to work at a particular place, voluntarily goes to a place different from that assigned by the contract of employment, he cannot successfully insist that he is within the protection of the rule that the master must exercise ordinary care to protect him against injury.” Green v. R. R., 85 Minn., 318. “Here the servant was ordered to do his work in a safe way, and he preferred to do it in another and what proved to be a dangerous way. Why should the master be liable if the servant acted in disobedience to his orders and was thereby hurt? It must be admitted that he was the author of his own injury. If it was necessary that the method adopted by him should have been not only in disobedience of his orders, but in itself dangerous, in order to visit upon him the consequences of his refusal to observe his master’s directions, it surely is not required that it should have been obviously dangerous. It is quite sufficient to bar his recovery if he knew that his method was a dangerous one, and chose to do his work in that way rather than in the manner pointed out by his master. Why should the danger be obvious if he had knowledge of it? If it had appeared that obedience to his master’s orders as to the manner of moving the truck was obviously dangerous, he had a right to refuse to do the work; but even then he could not select another and dangerous way to do it, and charge his master with the consequence thereof, and *660especially if tbe danger of the method which he adopted was known to him at the time.” Whitson v. Wrenn, supra,.
The other cases we have cited above are just as emphatic in announcing the doctrine, now become thoroughly well established, that if the servant chooses to do a thing he is not employed to do, the master owes him no legal duty, and if he is injured, especially if the act is a dangerous one, he must suffer the consequences of his wrong, for as to the particular act, not being within the scope of the service he was engaged to do, the law imputes the injury to his own wrong and not to any neglect of the master, who has directed him to do other things, or not to do his work in the way he has adopted. The principle more strongly applies where the dangerous act which injures him has been forbidden by his employer to prevent injury to him or others. “Persons on railroad tracks are bound to apprehend that locomotives may be swiftly approaching at any time, and are bound to be continually on the watch for them and to leave the track in season to avoid collisions with them.” Copp v. R. R., 100 Me., 568. That is our doctrine, also, as it has been so often stated and very recently reiterated. This unfortunate accident would not have occurred had the intestate not have trespassed upon the track and subjected himself to constant and great danger, or had not violated instructions. This is the dominant cause of his injury; but whether so or no, it was an active and efficient cause operating up to the very moment of the collision, and his was exactly the same kind of negligence as he imputes to defendant, in one respect — the absence of lights or other signals; but his negligence was aggravated by the fact that he was violating orders, while the engineer was not, but was acting in the regular and normal performance of his duty. It would be a very strange conclusion if the defendant could be charged with liability for an accident resulting from the misconduct of the intestate, which was begun, continued, and ended through his own negligence, bringing upon him, by his own fault, the disastrous consequences.
¥e may add that if plaintiffs’ evidence discloses that intestate was the author of his own injury, or that his negligence caused it proxi-. mately, either by itself or by concurring with that of some other person, a nonsuit is proper, as he thus proves himself out of court. This is settled by the eases already cited, as well as by Neal v. R. R., 126 N. C., 634; Royster v. R. R., 147 N. C., 347; Wright v. R. R., 155 N. C., 329; Fulghum v. R. R., 158 N. C., 555; Thompson v. Construction Co., 160 N. C., 390; Dunnevant v. R. R., 167 N. C., 232.
It is suggested in the opinion of the Court, but not conceded, that the validity of the nonsuit depends upon the contributory negligence of the intestate. In one sense his negligence was contributory, as it helped to cause his death; but upon the facts of this case, it was, at least, con*661curring at the very time of this collision between the engine and the lever-car.
The authorities cited in the opinion of the Court are not applicable to the facts of this case. In Heavener’s case, 141 N. C., 245, the jury found that the plaintiff had looked and listened, and was free from negligence, the decision being confined practically to defendant’s negligence, of which there was some evidence. The boy, in Shepherd v. R. R., 163 N. C., 520, had the right to cross the track on his way home, and was guilty of no negligence, the decision turning, as in Ileavener’s case, upon whether there was evidence of the defendant’s negligence. The same may be said of Griffin v. R. R., 166 N. C., 624, as it presented the question of the defendant’s negligence, with this further fact, which distinguishes it from our case, that the intestate was “drunk and down,” and not able to take care of himself. The negligence of the helpless man upon a track is a fact accomplished and passed, and the force of his negligence is fully spent, and therefore the duty is imposed upon defendant to look out and care for him. Jusiice Iloke said in Sawyer v. R. R., 145 N. C., 24, that “Although the plaintiff, in going on the track, may have been negligent; when he was struck down and rendered unconscious by a bolt of lightning, his conduct as to what transpired after that time was no longer a factor in the occurrence.” But this is not so where the person injured is in the possession of his faculties and able to care for himself, and continues to be actively negligent down to the very moment of the injury. This clearly presents a case of concurring negligence under the principle laid down by Justice Hoke in Watts v. R. R., supra, and unanimously adopted by this Court.
The rules of the company were introduced without objection, and were treated a.s authentic. They provided that “hand- or push-cars must not be used except in the company’s business, and never after dark, except by special authority of the roadmaster. Neither will they be allowed on the track in cloudy or foggy weather, when objects half a mile distant cannot be distinctly seen.” The plaintiff continuously violated this rule, to the very last. It will be seen that the rule requires that in cloudy or foggy weather, when objects cannot be distinctly seen half a mile distant, the hand-cars shall not be run at all.' The plaintiffs’ evidence shows that it was dark, the weather was thick and foggy, and an object could not be seen half a mile away. According to his testimony, the engine, a large object, was not seen until it was right at them, although the track was straight for 5 miles each way. We know, besides, that an engine has some light about it, as it must have fire in order to run. The hand-ear had no light at all, and was a much smaller object.
But apart from this view of the case, the act of going on the track, as we have said, in the night, with a hand-car, without any light or *662signal, and during a fog, was itself negligence, as any prudent man, or even a reckless one, should have known that it was exceedingly dangerous. If the engineer had been injured, and had sued G. W. Horne, the section foreman, or if the railroad company had sued for the damage to its engine, could there be any doubt as to the negligence of the intestate %
Tyson v. R. R., 167 N. C., 216, cited by the Court in its opinion, was another ease of a drunk and helpless man upon the track, and in Cullifer's caso, 168 N. C., 311, also cited by the Court, the second issue as to the plaintiff’s negligence was not answered, and, besides, the plaintiff was exercising a right she had to cross the track, and the negligence consisting in failing to look and listen before going upon the track had spent its force, and her horse backed while on the track, and reared and pranced in full view of those on the approaching engine, and could have been seen in time to prevent the injury. It was not a case of concurring negligence, but of proximate cause. In McNeill’s case, 167 N. C., at page 396, also cited by the Court, Justice Allen says: “It is not the absence of the headlight, nor the impact of the train, which determines the liability, but the impact of the train brought about by or as the proximate result of the absence of a headlight.” But there can be no such proximate cause here, if the intestate’s negligence was continuously active, and united with that of defendant, at the very moment of the injury, to produce it, and the joint negligence, therefore, was its proximate cause. Decisions of this Court, like the charge of the judge, and also like wills, deeds, and other instruments, should be considered with reference to their particular facts and as an entirety, with strict attention, of course, to the whole record, and when thus viewed, they fully sustain my conclusion.
BeowN, J., concurs in dissenting opinion of Walkeh, J.