dissenting: It was earnestly contended by counsel for defendant that this Court should bold it to be law that tbe drivers of all automobiles or other conveyances traveling along a public road shall come to a full stop whenever such road is crossed by a railroad track. This would be to make law, for it has never been so held in this State. This proposition is based upon a misconception, as it seems to me, of tbe respective rights of "the people and tbe railroads. Tbe public roads of tbe State belong to tbe people, and are used by them freely as a part of their sovereignty. Formerly they were tbe “King’s Highway.” Now they are tbe people’s highway — tbe public roads. Tbe railroads, with us, are not owned, as in other countries, by tbe Government, but by aggregations of individuals for tbe purpose of private gain. Being useful for tbe public, they are held to be gw'si-publie corporations, are granted tbe right of eminent domain to take private property for their use as right of way, and are subject to public regulation as to their conduct and charges. "Where they cross tbe public roads it is in derogation of the right of tbe public to use these roads, and potentially a serious danger, and, therefore, in all other countries they are forbidden to cross on the same grade, but must make their crossings either above or below the public roads. By force of necessity, in many of our States this has been required by statute to be done by the railroads at their own expense, though it was not enacted when the railroads were built originally.
In this State the Corporation Commission was authorized, in 1907, to require this to be done wherever desirable, C. S., 1048, and the railroads have voluntarily made the change in some few cases where most urgently needed. "Where this has not been done, recognition of the superior right of the public to use its own roads requires that whenever the railroad track crosses the public road on the same grade, the railroad company should give the fullest notice by the engineer blowing the whistle and ringing the bell, and by installing electric gongs to warn travelers, and in all much-frequented places (especially places like this, situated in town limits) to have gates and custodians to keep them.
In Germany for 40 years the approach of trains has been announced in railroad stations by electric gongs, operated automatically by the wheels of the engine making an electric circuit as it passes over a device located several hundred yards distant which rings the gong over the annunciator in the station, giving notice as to what train is arriving, *286instead of the human voice, as is usual here. The same device is used on some railroads here to give warning at crossings, in addition to signals by whistle and bell. It is an inexcusable disregard of the right of the public to use their own roads for the railroads not to install these electric gongs as a warning at all grade crossings in addition to whistle and bell, —and gates and custodian, where these latter are needed.
In absence of these proper signals, or if there are ho gates where the crossing is, as in this case, in a' town, or where the travel on the public road is frequent, the liability of the railroad for injury caused by such negligence on the part of the railroad should be conclusive. The right of the people to use their own roads should not be impaired by the negligence of the railroad authorities in not taking the precaution of giving the fullest notice at all crossings, and to establish gates where the track crosses a publie road on the same grade where it is much used.
In this State there are over 5,500 miles of railroad tracks and very many times as large a mileage of roads owned by the public, over which latter there passes constantly 150,000 automobiles and motor trucks licensed by the' State, besides horse-drawn vehicles many times as numerous, and other conveyances of both kinds from other States. These carry an immense number of persons, and a vast quantity of freight. To require every one of them to come to a full stop every time a driver of any conveyance sees a railroad track crossing a public road would be an incredible inconvenience, and would be in the aggregate, an enormous expense to the public in the aggregate loss of time by reason of the interference with the volume of traffic and travel along the public roads which is vastly greater than that which passes over the railroads. When we consider that the volume of travel and traffic, both on the publie roads and railroads is constantly increasing, and that the mileage of both will also grow, a rule that will require all the travel and traffic over the public roads to come to a full stop at the bare sight of a railroad track will be an enormous burden.
This would require’stoppage by everybody, all the time, whether a train is approaching or not. But as vehicles pass along the public roads far more frequently than do trains along the railroad tracks, it is a more reasonable rule that the railroads should be required to give notice by signals and, where necessary, by gates, of the approach of one of their dangerous agencies, so that the traffic and travel by the public over their public roads shall not be interrupted, except when absolutely necessary.
The railroads are granted existence by legislation, and are operated for private profit. They have no superiority over roads owned and used by the public, either in dignity or in right. On the contrary, it is incumbent on the railroads, wherever to save expense they persist in crossing the public roads on the same grade, to avoid accidents which *287may be inflicted by tbeir engines to give fullest notice of tlieir approach by signals, and in proper places, by lowering gates. In tbe absence of these the users of public roads should be free to proceed without fear or liability of injury to persons or property from the railroad engine.
At times the railroads have imposed upon the traveling public the inconvenience of a halt of 5 or 10 minutes as a forced tribute of respect on the death of some railroad official whom few of the public had the honor of knowing. This could happen only rarely. Gessler placed his hat upon a pole and compelled the public to pay obeisance to it. But neither of these are 'more repugnant to our sense of propriety and right than to require the people traveling their own roads to come to a full stop at the sight of two parallel bars of iron laid across the public highway, simply because the railroads, while saving themselves the expense of avoiding grade crossings, are unwilling to take the trouble or responsibility to give proper signals or to establish gates and custodians wherever needed. At this point, where the railroad track crossed the public road, the latter was a street in the town of Selma, and when the plaintiff .reached that point and was not warned by any bars kept- by a custodian for the defendant, which should be maintained at such places, nor by any whistle nor by the ringing of any bell or an electric gong by the defendant, and the train was 6 hours behind, and running at a speed, it is claimed, of a mile a minute, it was irrebuttable proof of the negligence of the defendant, and the proximate cause of the injury which was inflicted by its engine upon the plaintiff.
The principle maintained in Goff v. R. R., 179 N. C., 219, and in Johnson v. R. R., 163 N. C., 443, and in all other North Carolina cases was not that every traveler using the public roads must come to a full stop at the sight of a railroad track, but that he “must use his sense of sight and hearing to the best of his ability under the existing and surrounding circumstances — he must look and listen in both directions for approaching trains, if not prevented from doing so from the fault of the railroad company.” This the plaintiff did according to his uncontra-dicted testimony, and was prevented from seeing the approaching train by the fault of the defendant in obscuring a fuller view by empty cars which were negligently placed by the defendant on a sidetrack obstructing his view. This and the enormous speed of the train which approached, possibly, at a mile a minute, and running 6 hours behind the schedule when no train was expected, and without giving warning, without whistle or signal at this crossing of a street which was so much traveled, and in violation of the lawful town ordinance which limited the speed of trains within the town limits, were found by the jury to have been the proximate cause of the injury inflicted on the plaintiff. '
*288As bas been beld by Allen, J., in Perry v. R. R., at tbis term, quoting from Johnson v. R. R.: “If bis (tbe traveler’s) view is obstructed or bis bearing an approaching train prevented, and especially if tbis is done by tbe fault of tbe defendant, and tbe company’s servants fail to warn bim of its approach, and induced by tbis failure of duty, which bas lulled bim into security, be attempts to cross tbe track and is injured, having used bis faculties as best be could, under tbe circumstances, to ascertain if there is any danger ahead, negligence will not be imputed to bim, but to the company, its failure to warn bim being tbe proximate cause of any injury be received.” Mesic v. R. R., 120 N. C., 490; Osborne v. R. R., 160 N. C., 310.
In Cooper v. R. R., 140 N. C., 221, Hoke, J., said: “Where tbe view is obstructed, a traveler may ordinarily rely upon bis sense of hearing;- and if be does listen and is induced to enter upon a public crossing because of tbe negligent failure of tbe company to give tbe ordinary signals, tbis will usually be attributed to tbe failure of tbe company to warn tbe traveler of tbe danger, and not be imputed to bim for contributory negligence.”
In tbe Perry case, Judge Allen thus states tbe facts which are very similar to tbis: “Tbe evidence in tbis case tends to prove that as tbe plaintiff approached tbe crossing bis view was obstructed by bushes which tbe defendant permitted to grow on its right of way so high and so close to tbe track that be could not see until be was on tbe track; that tbe plaintiff was traveling from four to five miles an hour; that be looked and listened, and tbe inference is permissible that if notice of tbe approach of tbe train to tbe crossing bad been given that tbe plaintiff would have beard it, and would not have gone on tbe track, and if so, tbe jury was justified in finding that tbe failure to give notice caused tbe plaintiff to go on tbe track, and was tbe proximate cause of bis injury.” And, in sustaining tbe verdict of the jury, beld that it could not be declared a matter of law that tbe failure of tbe plaintiff to stop was a failure to exercise ordinary care, but was a circumstance to be considered by tbe jury. In that case, tbe view was obstructed by tbe defendant permitting bushes to grow on tbe right of way; and in this, case by tbe greater negligence of tbe defendant in shunting a dozen cars which obstructed tbe view down tbe track by travelers using tbe public road.
There are a very few Courts elsewhere who have deemed railroad trains such a deadly instrumentality of injury to tbe public that as a matter of law it is negligence that defeats a recovery for those using a public road not to come to a full stop at seeing a railroad track across a public road. But tbis loses sight of the vital fact that tbe railroads have a right to cross the public roads only sub modo, that is, on condi*289tion that they shall use every precaution by giving signals and preserving an unobstructed view for travelers and providing gates with custodian wherever the volume of traffic and travel requires it. It is their duty to make the use of the public roads as safe from injury by them, and to interfere therewith as little, as possible.
So far from holding with these Courts, however, it has been held by us, and cited with approval by Allen, J., in Perry v. R. R., supra, and it has been held in other cases (citing Shepard v. R. R., 166 N. C., 545), that “it is not always imperative to come to a complete stop before entering on a railroad crossing; but whether he must stop, in addition to looking and listening, depends upon all the facts and circumstances,” which is a question for the jury.
Judge Allen further says, pertinently, in the Perry case: “The authorities favoring this view proceed upon the idea that the traveler has a right to rely upon the performance of its duty by the defendant, and that when he looks and listens, and neither sees nor hears a train, he has the right to act on the presumption that none is approaching. . . . The sign placed' at the crossing, with the warning, ‘Stop, look, and listen,’ has no other legal effect than to call the attention of the plaintiff to the duty imposed upon him by law to exercise ordinary care for his own safety.”
In Perry’s case, as in this, “The evidence of the plaintiff that he might have heard the running of the train if he had stopped was submitted to the jury in support of the defendant’s position, and was given the significance to which it was entitled.”
I think the verdict and the judgment in this case should be sustained upon the law and the facts.