concurring: I • concur in the logical and well-written opinion of Justice Devin. As I have read with care the record, I set forth the evidence fully and the law applicable to the facts. The dissenting opinion, I think, is meager of facts and deals in technicalities and generalities. I also give much of the charge of the court below — ■ in my opinion perhaps few cases have been tried more ably and carefully.
This is an action for actionable negligence alleging damage, brought by plaintiff against defendant, for injuries sustained at a railroad crossing of defendant company in the city of Salisbury, N. C.
It is well settled that an exception to a motion to nonsuit in a civil action taken after the close of plaintiff’s evidence, and renewed by defendant after the introduction of his own evidence, does not confine the appeal to the plaintiff’s evidence alone, and a verdict will be sustained under the second exception if there is any evidence on the whole record of the defendant’s negligence. The evidence favorable alone to *73the plaintiff is considered' — defendants’ evidence is discarded. The competency, admissibility and sufficiency of evidence is for the court to determine, the weight, effect and credibility is for the jury.
The plaintiff testified, in part: “I have been living in Salisbury since 1932. In going from the freight depot in Salisbury, North Lee Street is used. The freight depot of the Southern Eailway Company is about 200 yards from this crossing. In going to the warehouse, North Lee Street is used. In going from Salisbury to the Cartex Cotton Mill and to this warehouse, North Lee Street crossing is used. The Thomas & Howard building adjoins this crossing on the west side. This is a brick building about 30 feet tall and approximately 100 feet long. This building goes up within a few feet of one of the spur tracks. This building runs parallel with the railroad tracks in a westerly direction for a distance of approximately 100 feet. Between the North Lee Street crossing and the Main Street crossing, there is a coal company chute that runs out to the railroad track and oil tanks are close to the track. There is another building on down close to the railroad track which faces Main Street. I think there are about three buildings, in addition to the oil tanks between Lee Street and Main Street, which look like they are up against the railroad track. The situation at this North Lee Street crossing is now like it was at the time of my injury. Going in a northerly direction there are seven tracks which I had to cross. They are almost in a half circle, beginning east of the Vance mill crossing and going west toward the Main Street crossing. ... I came to the railroad crossing at Thomas & Howard’s. There was a boxcar to my left on the Thomas & Howard sidetrack. I had to come to a complete stop because you couldn’t see anywhere ahead of you. On my right and next to the railroad was a big truck. I looked both ways, to the left and right. It was a cold, cloudy, drizzly day. That night it ivas foggy and you couldn’t see very far ahead of you from your automobile lights. I stopped within ten feet of the railroad crossing, looked both ways, didn’t see or hear anything and drove on across the tracks. I stopped for several seconds before starting across the track. You could not see anywhere to my left and towards the west, from the point at which I stopped because the building obstructed my view and the boxcar was next to it. I started across the tracks with my ear in low gear, driving slowly and looking both to the right and left. There is a space of approximately 50 feet between the fifth and the sixth tracks. I drove about halfway of that distance and brought my car almost to a complete stop and looked to the west and also towards my right. I didn’t see or hear anything. I did not hear any whistle or bell ringing. On the right-hand side of the space which I have described, up against the track and beside a telephone pole was a stack of crossties, 8 or 10 feet high. To my left the *74track comes in almost bal£ circle and tbe buildings I quoted a minute ago made it impossible for me to see down to tbe North Main Street crossing. I brought my car almost to a complete stop in tbe space which I have described. It was in low gear, pulled the car up there and slowed it down. It was foggy and you couldn't see but a few feet ahead of you and when I didn’t see anything, loolcing in both directions, I shoved the car in second gear and proceeded across the trades. When my automobile got about halfway across trade No. 6, the train was within 6 feet of me, because it- hit me just as I saw it.
“I could not see over 25 feet that night on account of the condition of the weather. It was foggy, the headlights of my automobile did not throw a light over 25 feet and the train was coming from the west. Because of the curvature of the trade, the engine headlight is thrown to the north of the trade. When I started to cross the last two tracks the speed of my car was between 5 and 10 miles an hour. After I crossed the fifth trade I could not see far enough down to my left to see anything. I didn’t see anything after I crossed the fifth trade and I was loolcing. I was hurt on the sixth trade, which is a good little piece from the fifth trade. The engine strucle my automobile at the left door on the driver’s side and carried me down the trade 50 or 60 feet. The train went at least that much farther. I would say that the train was running 30 or 35 miles an hour when it struck me because it was about 8 feet of me when I saw it and it hit me like that. (Witness snaps finger.) When I was between tracks 5 and 6 looking to the west, there was something that hindered me from seeing very far down the trade. I don’t lenow whether it was a coal car, pile of coal at the chute, or an oil tarde at the Texaco service place, and the condition of the weather too. . . .
“On the afternoon prior to my injury, when I went over this crossing, going in a southerly direction, I observed on the left a pile of crossties between track 5 and 6. This was on my left going in a southerly direction. I also noticed a boxcar next to the Thomas & Howard building; ■on down the track there were several piles of coal and a coal car. There is a coal chute runs out against the railroad and there was a coal car there. When I came back that night, going in a northerly direction, I could see this boxcar was still there next to Thomas & Howard. Down the track to my left I could not see as far as the Main Street crossing. I couldn’t see distinctly what was down there, but it appeared like those obstacles were still there. I could not say the boxcar was still there. In other words, obstacles were down there that prevented me from seeing down there. . . . When the train coming around that curve throwing a light the other way that car, coal piles and those buildings would obstruct your view. At a point 25 feet south of the sixth track I *75couldn’t see a train approaching from the west more than 25 feet on that particular night because of the obstructions I have just described, and the weather conditions combined. If there hadn’t been any fog, I couldn’t say how far I could have seen. On that night I couldn’t see the headlight of the engine or the lighted cars more than 25 feet. . . . I didn’t see any light, didn’t hear any noise and didn’t know anything about the train being on the track until it was within 8 feet of me.”
At the request of counsel for the defendants, concurred in by counsel for plaintiff, the jury was allowed to review the crossing in question. Accompanied only by the sheriff of the county and the judge presiding, the jury viewed the premises in accordance with an order of the court, agreed to by the parties to the action.
C. Y. Kirk testified, in part: “I don’t remember hearing any whistle or bell before the crash. ... It was a misty night. ... I was in position to hear the whistle or bell rung on that train. I did not hear any. Where I was working was about 75 feet from the crossing.”
Henry Fox testified, in part: “It had been raining and was foglike. I remember that because the top of the truck was wet. I had not seen or heard the train before the collision. I was in about 75 feet of the crossing and was in position to hear the train whistle or bell. I did not hear the whistle or bell or any other sound. I did not see Mr. Caldwell before the collision. I ran down to the train with Cleophus Kirk. Somebody helped me get Mr. Caldwell out of the car. He was taken to the hospital.”
B. E. Altman testified, in part: “I remember the weather on the night of December 7, 1937. It was somewhat foggy and misty.”
Homer Lingle testified, in part: “I reside in Salisbury. I saw Mr. Caldwell’s car at the Salisbury Motor Company the day following the collision. It was damaged on the left side between the door and the hood, where the driver sits. The front of the car was not damaged. I am familiar with Lee Street crossing in Salisbury. In my opinion S00 or 100 cars cross over it a day. That estimate is based on my use of the crossing.”
O. Y. Kirkman, a witness for defendants, testified, in part: “Track No. 1, as shown on the blueprint, is used as a storage track for Thomas & Howard. Track No. 2 serves the Texaco Oil Company and the Henderlite Coal Company. Track No. 3 is used to operate train on. It is a ‘Y’ track. Tracks 4 and 5 are team tracks used for the loading and unloading of freight at the freight depot. Track No. 6 carries eastbound traffic and Track No. 7 westbound traffic. Track No. S is kept open for the operation of trains. We operate three passenger trains over it a day between Salisbury and Asheville. That was true in 1937 as well as today. (Cross-examination.) Five passenger trains are *76operated oyer Tracks 6 and 7 every 24 hours. Six or seven freight trains are operated over Trades 6 and 7 a day. Track No. 1 also serves an oil company, as well as Thomas & Howard. Lee Street crossing is constantly used by the public day and night. (Q.) Please state whether or not on the 7th day of December, 1937, the Lee Street crossing was equipped with any electric gong, signal, night watchman or gates, or any other device to warn the traveling public of the approach of trains? Ans.: There was no device at the crossing. There was no stationary device or night watchman.”
J. E. Alexander testified, in part (on cross-examination): "Lee Street crossing is constantly and habitually used by the public as a thoroughfare day and night.”
The court below charged the jury: “Negligence, gentlemen of the jury, is the doing of some act which a man of ordinary care and prudence would not do under the same or similar circumstances. It is or may be the failure to do some act which a man of ordinary care and prudence would do under the same or similar circumstances. But every negligent act, gentlemen of the jury, is not a ground for recovery of damages. Before a negligent act may be a ground for the recovery of damages it must be what the law terms actionable negligence, that is to say, it must be the proximate cause of the injury and damage. Now by proximate cause is meant what that term implies, the real cause, the efficient cause, the cause, unbroken by any intervening agent, produces the result in continuous and natural sequence, the cause without which the injury would not have happened or occurred, and one from which a person of ordinary prudence could reasonably foresee that injury would result. You will bear that definition in mind, gentlemen of the jury, throughout the trial.” Contributory negligence was also corz-ectly defined in the charge.
The court below further charged the jury: “Where a railroad track crosses a public highway both a traveler and a train operated upon the railroad have equal rights to cross. But the traveler must yield the right of way to the train in the ordinary course of the operation of trains. While the train has the right of way at a crossing, it is the duty of the engineer and those in charge of its operation to exercise due care in keeping a proper lookout for danger and to give timely signals and warning in approaching such crossing. When approaching a public crossing the employees in charge of a train and a traveler upon a highway are charged with the mutual and reciprocal duty of exercising due care to avoid inflicting or receiving injury, due care being such as a prudent person would exercise under the circumstances at the particular time and place. Both parties are charged with the mutual duty of keeping a careful lookout for danger, and the degree of diligence to be used *77on either side is such as a prudent man would exercise under the circumstances of tbe case in endeavoring to perform bis duty. On reaching the crossing and before attempting to go upon it, the traveler must use his sense of sight and hearing — must look and listen for approaching trains, if not prevented from doing so by fault of the railway company; and this he should do before entering the zone of danger. A traveler has the right to expect timely warning, but the failure to give such warning will not justify the traveler in relying solely upon such failure or in assuming that no train is approaching. It is still his duty to exercise due care for his own safety by keeping a proper lookout. A traveler on the highway, before crossing a railroad track, as a general rule, is required to look and listen to ascertain whether a train is approaching, and the mere omission of the train to give signal by bell or whistle will not relieve him of this duty. A railroad track is a place of danger and a traveler entering upon such track at a crossing does so with knowledge of its danger. Where crossing danger is increased because of atmospheric conditions, such as fog or mist, such increase of hazard requires increased attention on the part of the traveler, and also requires increased effort and attention on the part of operators of the train in giving warning. The standard of care required of both remains the same, that is, the care which a reasonably prudent person would have exercised under the same circumstances, but the increased attention and effort required of the traveler in keeping a proper lookout for his own safety and the increased effort and attention required of the railroad in giving timely warning, are commensurate with the increase of the hazard. Where a railroad crossing is not peculiarly and unusually dangerous, the exercise of due care on the part of a railroad company does not require it to provide gates, signal devices, watchman, or other such safety methods. However, the exercise of due care on the part of the railroad company may require the erection of gates or signal device or the maintenance of a watchman where the crossing is unusually and peculiarly hazardous. (A) It is for the jury to say whether the crossing in question was, under all the circumstances, peculiarly and unusually hazardous so as to require the railroad in the exercise of due care, to erect gates or signal devices or maintain a flagman or such other means of warning and safety. (B) — {To the foregoing portion of his Honor’s charge embraced between the letters (A) and (B) the defendants except and assign error.) If it should appear that a crossing is a much-used one and situated in a populous area, those fads standing alone are not sufficient to constitute such crossing peculiarly and unusually hazardous so as to require the railroad, in the exercise of due care, to provide gates or signal devices or a watchman or such other means of warning. However, a peculiar and particular hazard may a,rise where the crossing is in *78a populous community, where it is much used, where there are conditions such as to obstruct the traveler’s view as he approaches and enters upon the crossing, where there is noise and confusion and other conditions reasonably calculated to distract the traveler’s attention and prevent him from seeing and hearing an approaching train. Gentlemen of the jury, you will bear those definitions and those rules in mind throughout the trial and apply the evidence to those principles of law.”
After giving the contentions of both sides carefully and accurately, to which no objection was made, the court below further charged the jury: “Now, gentlemen of the jury, you will consider the contentions of both sides and the evidence of both sides, and apply the evidence to the rules of law, holding in mind the contentions made by counsel and any contentions which reasonably arise upon the evidence. If the plaintiff has satisfied you, gentlemen of the jury, by the greater weight of the evidence, the burden being upon the plaintiff, that the defendants, in the operation of Southern Train No. 12 on the occasion referred to, December 7, 1937, failed to exercise due care in giving adequate and timely warning of the approach of the train to the crossing on North Lee Street, and if the jury shall further find from the evidence and by its greater weight that such failure was the proximate cause of the plaintiff’s injury and damage, then, upon such findings by the greater weight of the evidence, the burden being upon the plaintiff, the court charges you that it would be your duty to answer the first issue ‘Yes.’ If you fail to so find (nothing else appearing), it would be your duty to answer the first issue No.’ The first issue being, ‘Was the plaintiff injured and damaged by the negligence of the defendants, as alleged in the complaint?’ The plaintiff further contends, gentlemen of the jury, that the defendants were negligent, in that the plaintiff says and contends that North Lee Street crossing was peculiarly hazardous and unusually dangerous and that the exercise of due care on the part of the defendants required the erection and maintenance of some warning device, such as signals, gates or a watchman. The plaintiff says and contends that the street is a much-used street, that it is one of the main arteries of traffic, that it is one of the thoroughfares in the city, and that Salisbury is a city of considerable size. Plaintiff says and contends that traffic is upon the street day and night and that it is of a continuous nature, and that several hundred cars pass over the street during the day and night; that the street crossing is in close proximity to the freight depot and to a certain cotton mill, and to other sections of the town requiring traffic. The plaintiff says and contends that the street crossing is over seven tracks; that buildings are in close proximity to the tracks, and that the tracks to the left, that is, in a westerly direction, are not straight, fad that they are curved, and that, because of the curve and because of *79certain physical structures there, the approach of a train cannot he seen in close proximity to the crossing, and that it is unusually dangerous and particularly hazardous because of the curves, because of the obstructed vision, and because of certain noise which generally prevails there. Tbe plaintiff says and contends that you should be satisfied by the greater weight of the evidence that, on account of the conditions there, the traveler’s opportunity to see and hear an approaching train is interfered with, and interfered with to such an extent that it is peculiarly hazardous. The defendants say and contend to the contrary. The defendants say and contend that it is not a peculiarly and unusually hazardous crossing. Defendants say and contend that a limited number of trains pass over the crossing from day to day, and that the crossing is of sufficient width to take care of the traffic, and that there is sufficient distance in approaching the main lines, both from the north and south, to enable one to stop, look and listen, without going on, irrespective of other tracks, and that the tracks are straight, or practically straight, and that the headlight could be seen a considerable distance; that there is no congestion, that the area'is not sufficiently populous, and there are no sufficient noises to constitute a peculiar hazard. Now, gentlemen of the jury, it is a matter for you to say from the evidence as to what the truth is, and you will bear in mind all the evidence, the contentions of the parties made, and any contention which may arise upon the testimony. (C) The court charges you that if the plaintiff has satisfied you by the greater weight of the evidence, the burden being upon the plaintiff, that the crossing in question referred to as North Lee Street crossing, was peculiarly and unusually hazardous, and that the railroad company failed to provide gates or signal devices or a flagman or other such means of warning, then the court charges you that such failure on the part of the defendant railway company would constitute negligence, and if you further find from the evidence and by its greater weight that such negligence was the proximate cause of the plaintiff’s injury and damage, it would be your duty to answer the first issue ‘Yes.’ (D) — (To the foregoing portion of his Honor’s charge embraced between the letters (C) and (D), the defendants except and assign error.) If you fail to so find (nothing else appearing), it would be your duty to answer the first issue @No.’ Upon that issue as it relates to the question of signals or question of gates, the plaintiff says and contends that you should be satisfied by the greater weight of the evidence, first, that there were no gates or warning devices there, in the nature of gates or signal devices, and that if such gates or warning devices had been erected there, that he would not have received his injury. He says and contends that you should be satisfied by the greater weight of the evidence that such failure was, first negligence on the part of the defendant railway company, and that *80sucb negligence was tbe proximate cause of bis injury. Defendants say and contend, gentlemen of tbe jury, that you should not be so satisfied. Defendants say and contend, in tbe first place, that tbe crossing was not peculiarly hazardous and that, not being peculiarly hazardous, it was under no obligation to place gates or signals or station a watchman there; that it was open where the train could be seen going and coming in both directions, and that the plaintiff was in a position to see and know of the approach of the train, by the exercise of due care. Defendants say and contend that it committed no breach of duty and was not negligent in any respect, and say and contend that you should answer the first issue 'No.’ You will bear in mind all the contentions and all the evidence as it relates to the issue.”
As to whether it was negligence of defendant Southern Railway Company to fail to provide gates or signal devices or a flagman under the conditions prevailing at the crossing, the court below charged the rule of due care: (1) In the definition of “negligence,” “ordinary care and prudence,” and “proximate cause,” and charged, “You will bear that definition in mind, gentlemen of the jury, throughout the trial." (2) “Where a railroad crossing is not peculiarly and unusually dangerous, the exercise of due care on the part of a railroad company does not require it to provide gates, signal devices, watchman, or other such safety methods. However, the exercise of due care, on the part of the railroad company may require the erection of gates or signal device or the main-: tenance of a watchman where the crossing is unusually and peculiarly hazardous.” (3) “It is for the jury to say whether the crossing in question was, under all the circumstances, peculiarly and unusually hazardous so as to require the railroad in the exercise of due care, to erect gates or signal devices or maintain a flagman or such other means of warning and safety.” (4) “It would appear that the crossing is a much-used one and situated in a populous area, those facts standing alone are not sufficient to constitute such crossing peculiarly and unusually hazardous so as to require the railroad, in the exercise of due care, to provide gates or signal devices or a watchman or such other means of ivarning. However, peculiar and particular hazard may arise,” etc. (5) “The plaintiff further contends, gentlemen of the jury, that the defendants were negligent in that the plaintiff says and contends that North Lee Street crossing was peculiarly hazardous and unusually dangerous, and that the exercise of due care on the part of the defendant required the erection and maintenance of some warning device, such as signals, gates or a watchman.”
I give the charge fully. The court below defined negligence and instructed the jury that they should hear the definition in mind throughout the trial. Four other times the court below used the words “in the *81exercise of due care” in reference to gates, signal devices and watchman. There was no conflict anywhere in the charge, and the matter complained of was the omission to repeat what had been previously charged many times.
The general principles applicable are thus stated: Instructions must be considered as a whole, and if, as a whole, they state the law correctly, there is no reversible error, although a pari of the instructions considered alone may he erroneous. Portions of a charge, which considered alone, are objectionable, are not erroneous, if, when construed with the whole charge, the objections are not apparent. The instructions must be considered as a whole, and, if it appears that the jury was fairly and fully instructed on all the law applicable to the case, the judgment will not be reversed because the particular instruction taken alone may not have embodied all the law applicable. 32' N. C., and S. E. Digest, p. 640, secs. 295 (2) and 295 (3).
The dissenting opinion says: “This charge as given constitutes a statement that it is negligence per se for a railroad company to fail to maintain gates or signaling devices or a flagman at a crossing which is peculiarly and unusually dangerous, without regard to the principle of due care and without reference to whether an adequate and timely signal has been given by bell and whistle.” The record does not bear out this statement. The court below did not charge it was negligence per se. After charging five times the rule of due care, it omitted it in the portion set forth in the dissenting opinion. Nowhere in the brief of defendant is the position taken that is set forth above in the dissenting opinion. We find it only in the dissenting opinion. The dissenting opinion takes exception to that which defendants did not. The exception of defendants, as set forth in the charge, was as follows: “Defendants say and contend, gentlemen of the jury, that you should not be so satisfied. Defendants say and contend, in the first place, that the crossing was not peculiarly hazardous and that, not being peculiarly hazardous, it ivas under no obligation to place gates or signals or station a watchman therej that it was open where the train could be seen going and coming in both directions, and that the plaintiff was in a position to see and know of the approach of the train, by the exercise of due care. Defendants say and contend that it committed no breach of duty and was not negligent in any respect, and say and contend that you should answer the first issue No.’ You will bear in mind all the contentions and all the evidence as it relates to the issue.”
In the defendants’ brief is the following: “III. Did the court erroneously admit evidence as to the absence of gongs, gates or watchmen at the crossing, and in permitting the jury to consider the absence thereof on the first issue?” The brief says: “We respectfully argue that the *82crossing in question is not a peculiarly hazardous one and is such an intersection as is commonly to be found in any growing community.”
In the dissenting opinion we find: “On this phase of the first issue it is that part of the charge expressly required by statute, O. S., 564— the discretion and explanation of the law arising on the evidence — and constitutes the chart the jury was required to follow in arriving at its verdict.”
Here we have no exception or assignment of error to the charge made by defendants, but 0. S., 564, which is as follows (ex mero motu is taken to base a dissent on) : “No judge, in giving a charge to the petit jury, either in a civil or criminal action, shall give an opinion whether a fact is fully and sufficiently proven, that being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon.”
The policy of the State differs from the Federal rule and the rule in most states, and the section has been the subject of much criticism.
In the present action, a long trial, the charge is so free from error and carefully given that defendants made no exception or assignment of error to same, except that the court below should not have left it to the jury on the question of negligence as to not providing gates, signal devices, watchman or other such safety methods. Usually a litigant who can find no prejudicial or reversible error cries out C. S., 564. Madame Roland, a famous French lady during the French Revolution, when on the scaffold, looking at the statute to Liberty which stood there, said bitterly, “Oh, liberty, what crimes are committed in thy name.” I might. paraphrase this quotation by saying: “Oh, 0. S., 564, what injustice, by technical, attenuated and cloistered reasoning, is committed in thy name.” A court should be slow to “pick up” 0. S., 564, to overthrow a verdict of a jury — the “palladium of our civil rights,” the rock on which free and orderly government is founded.
In Dudley v. R. R., 180 N. C., 34 (36), it is said: “It was not error for the court to permit the plaintiffs to offer evidence that there was no automatic alarm, or gates, at the crossing, and the court properly left it to the jury to say, upon all the attendant circumstances, whether the railroad company was negligent in not erecting gates. It was incumbent upon the defendant to take such reasonable precautions as were necessary to the safety of travelers at public crossings. 22 R. C. L., 988. This was a question of fact for the jury.”
In Blum v. R. R., 187 N. C., 649-650, is the following: “Upon careful examination, we find no error in the instructions to this matter, which is fully discussed in R. R. v. Ives, 114 U. S., 408, where it is said that the general rule is ‘well stated’ in R. R. v. King, 86 Ky., 589, as follows: ‘The doctrine with reference to injuries to those crossing the track of a *83railway, where the right to cross exists, is that the company must use such reasonable care and precaution as ordinary prudence would indicate.’ It also quotes R. R. v. Perkins, 125 Ill., 127, where it was held that The fact that a statute provides certain precautions will not relieve a railway company from adopting such other measures as public safety and common prudence dictate. And in Thompson v. R. R., 110 N. Y., 636, where it was held that giving the signals required by law by a railroad train approaching a street crossing does not, under all circumstances, render the railway company free from negligence,’ citing also, R. R. v. Commonwealth, 13 Bush., 388; Weber v. R. R., 58 N. Y., 451, and concludes as follows: ‘The reason for such ruling is found in the principle of the common law that every one must so conduct himself and use his own property as that, under ordinary circumstances, he will not injure another in any way. As a general rule, it may be said that, whether ordinary care or reasonable prudence requires a railroad company to keep a flagman stationed at a crossing that is especially dangerous, is a question of fact for the jury to determine, under all the circumstances of the case, and that the omission to station a flagman at a dangerous crossing may be taken into account as evidence of negligence,’ adding that where the crossing is a much-traveled one, and the noise of approaching trains is rendered indistinct and the ordinary signals difficult to be heard, by reason of the bustle and confusion incident to railway or other business, or by reason of some such like cause, a jury would be warranted in saying that the railway company should maintain these extra precautions at ordinary crossings in the country, citing numerous authorities. That case has been cited and approved on this point by numerous cases since, which held ‘a railroad is not excused for negligence by mere compliance with statute; it must take necessary precautions.’ 15 Eose’s Notes, 1213, and cases there cited; and R. R. v. Dandridge, supra (171 Fed., 74 [U. S. C. C. A.]), and cases citing the same. Indeed, upon the evidence in this case, it would seem that the jury could have had no doubt, if the matter had not been withdrawn from their consideration, that if an automatic gong had been installed at this place it would have given such notice to the plaintiff’s testator and his companion that it would have prevented this accident; at least, they would have been justified in drawing the inference that the failure to do so was negligence on the part of the defendants.”
In Nash v. R. R., 202 N. C., 30 (32), it is written: “Much evidence was offered by the plaintiff to the effect that the crossing was a populous and much used crossing, and that the defendant had maintained no watchman, gate or other signal device for the protection of the public. . . . (p. 33) The evidence of plaintiff and the inference which such evidence warrants, classify this case in the line of decisions represented *84by Moseley v. R. R., 197 N. C., 628; Thurston v. R. R., 199 N. C., 496; and Butner v. R. R., 199 N. C., 695.”
In Moseley v. R. R., 197 N. C., 628 (637), it is said: “The mere absence o£ a statute requiring a flagman or watchman at crossings will not, however, of itself relieve the railroad company from the duty to maintain one, and where a crossing is so peculiarly dangerous that the reasonable safety of the traveling public requires the presence of a flagman or other extraordinary means to signal the approach of the trains, it is incumbent upon the railroad company to employ such means. It is for the jury to say whether under all the circumstances of a particular case the railroad has been guilty of negligence in not maintaining a flagman or watchman at a particular crossing.”
The principle in the above authorities is approved in the recent case of Harper v. R. R., 211 N. C., 398. The law on this subject is so well settled in the interest of life and limb, why unsettle it on a supposed technicality — as is attempted in the dissenting opinion?
In Elliott on Railroads, 3rd Ed., part sec. 1584, p. 408, is the following : “Crossings are sometimes safeguarded by means of bells which are caused to sound by a current of electricity set in motion by approaching trains when within a given distance of the crossing. This method is regarded as effective for the purpose and is likely to come into general use.” (Italics mine.)
The railroad companies are to be commended that since the building of our great system of hard-surfaced and dependable highways in the State, almost everywhere they have installed electric signals at dangerous crossings with the words “stop on red signal” on them.
In the above cited cases the law is well settled in this State.
On the second issue the dissenting opinion holds it error that the following instruction was not given: “The court charges the jury that the jury should answer the second issue ‘Yes,’ unless the jury finds that the vision of the plaintiff was obstructed by fog or mist.” The evidence of plaintiff was: “I could not see over 25 feet that night on account of the condition of the weather. It was foggy, the headlights on my auto-motile did not throw a light over 26 feet and the train was coming from the west. Because of the curvature of the track, the engine headlight is thrown to the north of the track. When I started to cross the last two tracks the speed of my car was between 5 and 10 miles an hour. After I crossed the fifth track I could not see far enough down to my left to see anything. I didn’t see anything after I crossed the fifth track and I was looking. I was hurt on the sixth track, which is a good little piece from the fifth track. . . . When I was between the 5 and 6 track looking to the west there was something that hindered me from seeing very far down the track. I don’t know whether it was a coal car, *85pile of coal at the chute, or an oil tanlc at the Texaco service place, and the condition of the weather, too.”
Tbe instruction was substantially given and correct from plaintiff’s testimony, as follows: “A railroad track is a place of danger and a traveler entering upon such track at a crossing does so witb knowledge of its danger. Where crossing danger is increased because of atmospheric conditions, such as fog and mist, such increase of hazard requires increased attention on the part of the traveler, and also requires increased effort and attention on the part of operators of the train in giving warning. Tbe standard of care required of botb remains tbe same, tbat is, tbe care wbicb a reasonably prudent person would bave exercised under tbe same circumstances, but tbe increased attention and effort required of tbe traveler in keeping a proper lookout for bis own safety and tbe increased effort and attention required of tbe railroad in giving timely warning, are commensurate witb tbe increase of tbe bazard.”
In tbe dissenting opinion it is said: “Tbe court excluded certain evidence of experiments made by witnesses to ascertain whether an approaching train could bave been seen in tbe nighttime by a person between tracks 5 and 6 under atmospheric conditions similar to those testified to by witnesses.” This statement “under atmospheric conditions similar to those testified to by witnesses” is incorrect. There is no evidence in tbe record showing similarity of atmospheric conditions. Defendants introduced F. S. Cline, and bis testimony excluded was: “The night was cloudy but it was not raining.” J. W. Carpenter’s testimony was excluded: “It was a kind of misty rain.” Tbe plaintiff’s evidence was tbat “Tbe night was foggy”; “It bad been raining and was fog-like,” and “It was somewhat foggy and misty.”
In 1 Wig-more on Evidence, 2nd Ed., p. 782, tbe rule is thus succinctly stated: “Tbe similarity tbat is required is, in short, a similarity in essential circumstances, or, as it is usually expressed, a substantial similarity, i.e., a similarity in such circumstances or conditions as might supposedly affect the result in question.”
Tbe question of a “foggy night” is vastly different from a “cloudy night” or “misty night.” It is a matter of common knowledge tbat automobiles are now equipped, when desired, witb special “fog lights.”
An appellate court, by careful examination, may not infrequently find errors in language used or omitted by tbe trial judge in bis instructions to tbe jury, upon pure issues of fact, but in accord witb a less technical and more liberal conception of tbe power to review, tbe court may also, upon due consideration of all tbe circumstances surrounding tbe trial and tbe light of tbe matter under investigation, perceive tbat tbe errors complained of neither misled tbe jury nor affected tbe impartiality and fairness of tbe trial.
*86In In re Ross, 182 N. C., 477 (478), is the following: “Our system of appeals, providing for a review of the trial court on questions of law, is founded upon sound public policy, and appellate courts will not encourage litigation by reversing judgments for slight error, or for stated objections, which could not have prejudiced the rights of appellant in any material way. Burris v. Litaker, 181 N. C., 376; In re Eden’s Will, ante, 398, and cases there cited. Again, error will not be presumed; it must be affirmatively established. The appellant is required to show error, and he must make it appear plainly, as the presumption is against him. In re Smith’s Will, 163 N. C., 464; Lumber Co. v. Buhmann, 160 N. C., 385; Albertson v. Terry, 108 N. C., 75. See, also, 1 Michie Digest, 695, and cases there cited under title ‘Burden of Showing Error.’ ”
The court below tried the case with unusual care and ability and applied the law applicable to the facts. After an extensive and thorough investigation of the law and facts, I can see no prejudicial or reversible error and think the judgment of the court below should be sustained, and I concur in the main opinion.