dissenting: The defendant was maintaining three tracks in the street of Eeidsville. The injury of the plaintiff was caused by the defendant, and at a much-used crossing of the street from the office of the Edna Cotton Mill. On the western track there was a string of freight cars, reaching to a considerable distance north of the crossing, impeding observation of any train coming from the north down the middle track. When the plaintiff reached this much-used crossing, he found a long freight train passing on the easternmost track going north. He waited until that train had passed. He testified that then he looked in both directions, i. e., north and south, “to see if there was any approaching train; that he saw none; that he heard no signal by whistle or bell or any other signal; that he was near enough to have heard such had any been given of the approach of a train; that seeing no train approaching, and hearing no signal, he started to cross the track when an engine on a train approaching from the north, without giving any signal, struck and seriously injured him.” He says his view, of the approaching engine was obscured by the long line of cars on the western or industrial track, and that it was further somewhat obscured by the dense smoke emitted by the train going north.
If it were conceded that the plaintiff was negligent in going upon the middle track to cross until the smoke had entirely cleared away, still it has been the uniform rulings of this Court heretofore that when there is negligence on the part of the defendant, as the jury has found in this *420case, and contributory negligence by tbe plaintiff, it is error not to submit to tbe jury tbe question as wbicb was tbe proximate cause of tbe injury.
In tbis case tbe defendant was using three tracks upon tbe street. The plaintiff was crossing at a much-used crossing from tbe cotton mill, tbe knowledge of which required of tbe defendant extra care in giving signals. Tbis caution was more than usually required in tbis case, because tbe western track was occupied by a long string of freight cars standing thereon, and tbe train passing on tbe eastern track bad cast a dense volume of smoke calculated to obscure tbe aj>proacb of tbe train from tbe north on tbe middle track. Both of these facts were apparent to tbe engineer of tbe train coming from tbe north on tbe middle track, and made it incumbent upon him to sound tbe whistle, or ring tbe bell, or both. Furthermore, it was tbe grossest negligence of tbe company itself that at such much-used crossing it did not have an automatic gong, operated by tbe wheels of tbe train, nor any bars to be let down by a guard, placed at that point to protect tbe public in using such crossing.
Tbe plaintiff testified that be looked both ways before attempting to cross the middle track, and seeing nothing, and bearing nothing, be was on his way across tbe track and was struck by tbe southbound train, wbicb approached unseen and unheard. How far tbe plaintiff was guilty of negligence by proceeding without waiting until tbe string of cars on tbe track were moved or until tbe smoke bad entirely lifted, was for tbe jury to 'decide, and not tbe court. And even if be was negligent, it was for tbe jury to say whether tbe proximate cause was not tbe failure of tbe defendant to give signal by whistle and bell or gong wbicb would have prevented tbe plaintiff attempting to cross tbe track when after looking both ways be neither saw nor beard any approaching train.
This was the last cause, and therefore tbe proximate cause, of tbe injury. Besides, under tbe principle laid down, in Troxler v. R. R., 124 N. C., 191, and Greenlee v. R. R., 122 N. C., 977, tbe failure of tbe railroad to have automatic gongs and bars, at much-used crossings across a public street, was “negligence per se continuing up to tbe time of tbe injury, and therefore tbe causa cwuscms" because if used up to tbe very last moment, even when tbe plaintiff was about to step upon tbe track, tbis would have caused him to draw back and save himself. And hence the negligence of tbe defendant, as a matter of law, was irrebutable.
Long ago tbe Corporation Commission was empowered, Laws 1907, eh. 469, now O. S., 1049, to require tbe abolition of grade crossings. Tbis has not been done in tbis case, but none tbe less it was incumbent upon tbe defendant at tbis much-used crossing of a public street (where the defendant was operating three tracks) to at least install automatic *421gongs or to have a guard and bars for tbe protection of tbe public. And wben, in addition to tbe omission to do these things, tbe defendant bas obscured tbe view by a string of empty cars on tbe western track, and by a cloud of smoke from tbe passing train on tbe eastern track, and tbe engineer of tbe southbound train on tbe middle track failed to give signal of that approach by whistle or bell, it was clearly error not to leave to tbe jury tbe question as to whether such accumulation of negligent acts by tbe defendant or tbe act by tbe plaintiff was tbe proximate cause.
Furthermore, it was error to charge tbe jury that tbe presence of tbe empty ears on tbe western track, 15 feet from tbe crossing in tbe direction of tbe oncoming train was “not material upon any aspect of tbe case, and did not tend to show negligence on tbe part of tbe defendant.” Tbe plaintiff testified that tbe presence of tbe cars on tbe sidetrack impeded his Anew of tbe oncoming train. "Whether it did so or delayed tbe passing away of tbe smoke left by tbe other train, tbe presence of tbe said cars there and tbe smoke both tended to prove negligence on tbe part of tbe engineer of tbe southbound train in failing to give signal by whistle or bell, and hence were material circumstances for tbe consideration of tbe jury on tbe question of proximate cause.
Tbe judge charged tbe jury that "unless tbe smoke was so thick and heavy that tbe train that struck tbe plaintiff could not be seen by him, that they should find that tbe plaintiff was guilty of contributory negligence though there was no signal or warning given of tbe approaching train.” Without leaving it to tbe jury to say what was tbe proximate cause of tbe injury, whether this contributory negligence, or tbe multiplied acts of negligence, above enumerated on tbe part of tbe defendant, he entered judgment on such defective verdict.
Singularly enough, while the charge of tbe court instructed the jury to find tbe plaintiff guilty of contributory negligence, "unless tbe smoke was so thick and so heavy that the train was obscured and could not be seen by him,” tbe opinion of this Court affirms tbe judgment below upon the directly opposite ground that the plaintiff was guilty of contributory negligence “if be went upon the track wben tbe smoke iuas so thick and heavy that be could not see tbe train.”
Tbe plaintiff lost tbe case below by the view of tbe trial judge that unless tbe smoke was so thick and dense that be could not see tbe train the plaintiff caused bis own injury; and be loses in this Court because the majority think that if the smoke was so thick and dense that be could not see tbe train be was guilty of contributory negligence, which makes the charge erroneous.
In neither view bas tbe jury bad any chance to find tbe facts; and all consideration of multiplied instances of negligence of tbe defendant *422have been put out of sight, and in both courts it has been held as a matter of law (but for directly opposite reasons) that the plaintiff was guilty of contributory negligence, and that this was the proximate cause of his injury.