dissenting: In considering the evidence of the plaintiff as to obstructions existing as he approached the crossing where the accident occurred it is necessary to bear in mind that he was speaking as of the time he approached the first track. This is clearly demonstrated by his own evidence.
Yiewing these seven tracks from a northerly to a southerly direction they spread out fan-like so that at the Lee Street crossing there is a space of more than 131 feet from track No. 1 to track No. 7. The distance from the center of track No. 5 to the center of track No. 6 is more than 68 feet and the plaintiff admitted that the distance between the two tracks was at least 50 feet.
Plaintiff testified that there was nothing on tracks Nos. 2, 3, 4, or 5 and nothing in the space between tracks 5 and 6 except a pole with a crossarm warning sign; that in the daytime a person between tracks 5 and 6 could see at least 400 feet to the north from whence the train came. That this is true is demonstrated by the map and the photographs which appear as exhibits in the case. The correctness of these is not challenged by the plaintiff. We should likewise bear in mind that tracks 6 and 7 to the north are practically straight.
The train which struck the plaintiff stopped at the Main Street crossing and was required to stop at the first crossing east of Lee Street, and there is no evidence of excessive speed of the train at the time of the collision. In fact, the plaintiff admitted that after the collision the train stopped within 50 or 60 feet.
*87Tbe court excluded certain evidence of experiments made by witnesses to ascertain whether an approaching train could have been seen in the nighttime by a person between tracks 5 and 6 under atmospheric conditions similar to those testified to by witnesses. ' This evidence was competent and should have been admitted. Its exclusion was error. Arrowood v. R. R., 126 N. C., 632; S. v. Young, 187 N. C., 698, 122 S. E., 667; Willis v. New Bern, 191 N. C., 507, 132 S. E., 286; 22 C. J., 755. It is true that other evidence of observations was admitted. This “other evidence” came from the plaintiff. He was permitted to testify that he went back to the crossing 12 or 15 times to make observations and without first describing the weather conditions at the time the observations were made. He testified that “looking toward Main Street crossing you couldn’t see the head of the engine until it got at least halfway between the North Main Street crossing and this (Lee) crossing.” The error of the court in excluding this testimony tendered by the defendant is emphasized by the fact that it permitted the plaintiff to testify to such experiments under these conditions. The court might just as well-have said to the jury, “The plaintiff has testified as to experiments made in the nighttime to determine whether an approaching train could be seen. The court will not permit this testimony to be contradicted.”
But, even if the “other evidence” had come from witnesses for the defendant — and the record does not so disclose — the exclusion of this evidence was erroneous.
The rule applies when the same witness gave substantially the same testimony without objection in other portions of his examination, Baynes v. Harris, 160 N. C., 307, 76 S. E., 230; Haves v. Coxe, 203 N. C., 173, 165 S. E., 345; S. v. Dickey, 206 N. C., 417, 174 S. E., 316. As said by Brogden, J., speaking for the Court in the Eaves case, supra: “Obviously if a party offers the competent testimony of a given number of witnesses, but the court excludes the testimony of one, even though the testimony of the others is admitted without objection, notwithstanding the offering party is entitled to the credibility and weight of testimony of the excluded witness. Otherwise the total weight and credibility of the testimony would be reduced for the reason that a jury might have believed the testimony of witness whose evidence was excluded and for one reason or another might not believe testimony of the witnesses whose testimony was received without objection. Hence it cannot be said as a matter of law that the exclusion of such testimony was harmless error.” Approved in S. v. Dickey, supra.
The majority concedes the competency of the evidence. The authorities are to the effect that its exclusion was harmful.
The plaintiff, having admitted that there was no obstruction between tracks 5 and 6, testified, “I could not see over 25 feet that night on *88account 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 ... in that space of 50 feet, as you say, from track 5 to track 6 all the way up to your left, the direction from which the train was coming, there was no obstruction except a railroad crossing signal ... I don’t know what kept me from seeing. There was some obstruction of some kind. It was cloudy all day, it rained some that day and it was foggy that night. In the open area within 25 feet from this to the left there wasn’t anything. When I was within 25 feet of the track there was nothing but the fog ... at that time I was going 5 or 10 miles per hour and could have stopped my car in 10 feet. ... I don’t know what kept me from seeing it (the headlight). I didn’t sed it. I never did see the headlight.” He also admitted that he told defendant’s agent that fog obstructed his view.
On the second issue, as to the contributory negligence of the plaintiff, the defendant, basing its request upon 'the foregoing evidence and like evidence offered by the defendant, prayed the court to instruct the jury as follows :
“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 substance of the instruction should have been given. On the plaintiff’s own evidence, if there was no fog to obstruct his vision, he admittedly drove in front of an oncoming train which, by the exercise of ordinary care, he could have seen but for the atmospheric conditions about which he complains. Meacham v. R. R., 213 N. C., 609, 197 S. E., 189. This view of the defendant’s defense the court wholly failed to present to the jury. Its failure to do so was error substantially harmful to the defendant.
In this connection it may be well to note that plaintiff testified that with the benefit of the lights of his automobile, which were in good condition, looking forward he could not see more than 25 feet. How then could he have seen an obstruction to the left without the aid of any light? When a witness makes a statement of fact which is obviously impossible it does not rise to the dignity of evidence.
On the first issue as to the negligence of the defendant the court first charged the jury:
“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 *89and by its greater weight that such failure was the proximate cause of the plaintiff’s injury and damage, then, upon such findings by tbe 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 ?’ ”
But, after stating the contentions in respect thereto, the court instructed the jury further:
“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 railway 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.’ ”
This latter instruction is erroneous and harmful in several respects. For convenience in discussion the two excerpts will be referred to as charge No. 1 and charge No. 2.
On the evidence in this case as, it appears in the record before us the jury might well have found that the defendant gave an adequate and timely warning of the approach of its train and, therefore, in that respect there was no negligence, and could then have found, under the second charge, that the Lee Street crossing was peculiarly and unusually hazardous and the defendant had failed to maintain at the crossing any gates or other signaling device, constituting negligence under the instruction of the court. We cannot assume that this was not the conclusion of the jury. Thus in this respect the charge was conflicting and erroneous.
What constitutes an unusually dangerous and hazardous crossing is a question of law. It is unusually and peculiarly hazardous within the law so as to require the railroad to maintain some signaling device when and only when the surrounding conditions are such as to render a timely signal by bell and whistle inadequate to warn a traveler approaching the track. Whether the evidence in the case brings the crossing within the definition is for the jury.
The court did not define what constitutes an unusually hazardous crossing. It did tell the jury that the mere fact that a crossing is a much-used one and situated in a populous area does not of itself constitute it an unusually hazardous one, but in that connection he instructed *90tbe jury tbat “it is for tbe jury to say whether tbe crossing in question was, under all tbe circumstances, peculiarly and unusually hazardous so as to require tbe railroad in tbe exercise of due care, to erect gates or signaling devices or maintain a flagman or such other means of warning- and safety.” Its failure to instruct tbe jury as to what constitutes an unusually hazardous and dangerous crossing and- its action in leaving this question of law for tbe determination of tbe jury was error. If this procedure is to be approved then it will be left to each succeeding jury to decide crossing accident cases according to its own particular view or understanding of what constitutes a hazardous crossing.
This charge as given constitutes a statement tbat 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 hazardous, without regard to the principle of due care and without reference to whether an adequate and timely signal had been given by bell and whistle.
On this phase of the first issue it is that part of the charge expressly required by statute, O. S., 564 — the declaration and explanation of the law arising on the evidence — and constitutes the chart the' jury was required to follow in arriving at its verdict. The defendant’s exception thereto should be sustained.
The general rule is that, in the absence of a statutory requirement, a railroad company is under no duty to provide gates, gongs, or other safety devices at public crossings, and that, therefore, the failure to do so at any particular crossing is not negligence per se. Grand Trunk R. Co. v. Ives, 144 U. S., 408, 36 L. Ed., 485, 16 A. L. R., 1273 (note), and cases cited; 60 A. L. R., 1096 (note), and eases cited.
The absolute duty of posting a flagman or placing gates or other obstructions or of giving special or personal notice to travelers at railway crossings can only be imposed by the Legislature. Courts and juries, whatever may be thought by them of the convenience or necessity of such or other like precautions at a particular crossing, cannot hold the company to provide them under the penalty of being charged with negligence for the omission. Weber v. New York C. & H. R. Co., 58 N. Y., 451; Case v. New York, C. & H. R. Co., 27 N. Y. Supp., 496; Kulp Transp. Lines v. Erie R. Co., 23 N. Y. Supp., 490.
Nevertheless, evidence of the failure of the railroad company to provide a watchman, gates or gongs, is sometimes admissible on the issue of negligence to enable the jury to determine whether under all the circumstances the defendant has exercised due care and has taken such reasonable precautions as are necessary to give travelers adequate and timely warning of the approach of its train for the protection and safety of those using the crossing. Blum v. R. R., 187 N. C., 640, 122 S. E., 562; *91Dudley v. R. R., 180 N. C., 34, 103 S. E., 905; Batchelor v. R. R., 196 N. C., 84, 144 S. E., 542.
On this issue the questions are: (1) Did the railroad company give warning of the approach of its train? and, (2) If so, was such warning both adequate and timely — such that a traveler approaching the particular crossing and exercising ordinary care for his own safety, could and would have heard the signal in time to stop before entering the zone of danger? A breach of this duty to give such warning constitutes negligence.
It is incumbent on a railroad company to take such reasonable precautions as are necessary to the safety of travelers who exercise ordinary care for their own safety at public crossings. Batchelor v. R. R., supra. The settled rule is that if a person of ordinary prudence, under all the circumstances, would have maintained a flagman or watchman at the crossing where the plaintiff was injured, then the failure on the part of the railroad company to keep such flagman or watchman constitutes negligence. Texas Midland R. Co. v. Wiggins, 166 S. W., 441. Whenever, in the exercise of due care and caution in running its trains it becomes reasonably necessary, considering the nature, location and surroundings of a railroad and a public highway or street, that a watchman should be placed at such crossing or other warning device should be adopted to give notice to travelers of approaching danger and to signal to them when it will be reasonably safe for them to make such crossing, it is the duty of such railroad corporation, independent of any statute or ordinance in that behalf, to place a flagman at such dangerous crossing to perform such duty or to provide some other adequate mode of warning. Pittsburgh C. C. & St. L. R. Co. v. Tatman, 122 N. E., 357 (Ind.).
Under ordinary circumstances the warning required of a railroad company is given by the ringing of a bell and the blowing of a whistle. Blum v. R. R., supra; Batchelor v. R. R., supra. However, conditions may exist at a particular crossing which renders such type of warning inadequate or it may not be timely given. In determining whether a warning by bell and whistle is inadequate and the failure to give some additional warning (by watchman, gong, gates or the like) constitutes negligence, the circumstances existing at the time — such as the frequency with which trains are passing, the amount of travel, the number of tracks, the obstruction of view, the opportunities or want of opportunities for travelers to observe the approach of trains and to hear the signals ordinarily given and the speed of the train — may be considered. See 16 A. L. R.
Before a jury will be warranted in saying, in the absence of any statutory directions to that effect, that a railroad company should keep *92a flagman or gates at a crossing it must be first shown that such crossing is more than ordinarily hazardous; as, for instance, that it is in a thickly populated portion of a town or city, and that the view of the track is. obstructed either by the company itself or by other obstructions proper in themselves; or that 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 like cause. Grand Trunk R. Co. v. Ives, supra; Tisdale v. Panhandle & S. F. R. Co., 16 A. L. R., 1264 (Tex.). Thus in the Grand Trunk R. Co. case, supra, the following charge was approved:
“So, if you find that because of the special circumstances existing in this case, such as that this was a crossing in the city much used and necessarily frequently presenting a point of danger, where several tracks run side by side, and there is consequent noise and confusion and increased danger; that owing to the near situation of houses, barns, fences, trees, bushes or other natural objects which afforded less than ordinary opportunity for observation of an approaching train, and other like circumstances of a special nature it was reasonable that the railroad should provide special safeguards to persons using the crossing in a prudent and cautious manner, the law authorizes you to infer negligence on its part for any failure to adopt such safeguard as would have given warning,” etc.
The question to be submitted to the jury is not whether in their judgment due care required the railroad company to keep a flagman at the crossing to give warning; not whether that was a suitable mode of giving notice of the approach of a train; not “what signal would be sufficient” to give such notice. But the question is, whether, under the actual circumstances of the case, the company exercised reasonable care and prudence in what it did in undertaking to give adequate and timely notice of the approach of its train, and whether its negligence in failing so to do caused the injuries complained of. Grippen v. New York C. R. Co., 40 N. Y., 46. See also Beisiegel v. New York C. R. Co., 40 N. Y., 9; Weber v. New York C. & H. R. Co., 58 N. Y., 451; McGrath v. New York C. & H. R. Co., 63 N. Y., 522; Heddles v. Chicago & N. W. R. Co., 74 Wis., 239, 42 N. W., 237.
Before it can be said that it was negligence for a railroad company to fail to station a flagman at a crossing “it should be made to appear that the danger was altogether exceptional; that there was something in the case which .rendered ordinary care on the part of the traveler an insufficient protection against injury, and, therefore, made assumption of this burden on the part of the railroad company of the employment of a flagman a matter of common duty for the safety of others.” Hass *93v. Grand Rapids & I. R. Co., 47 Mich., 401, 11 N. W., 216. Also see Grand Trunic R. Co. v. Ives, supra.
Tins, from tbe authorities in this and other jurisdictions it may be adduced that:
1. There is no general duty, as such, on the part of a railroad company to place a watchman or flagman at grade crossings of public roads or highways and its failure so to do is not negligence per se.
2. It is the duty of a railroad company to give adequate and timely warning of the approach of its trains to a grade crossing.
3. Ordinarily, at grade crossings when no unusually dangerous and hazardous conditions exist, timely signals by ringing the bell and blowing the whistle is deemed to be adequate.
4. When the conditions existing at or about the crossing are such as to render the crossing dangerous and hazardous to the traveling public and tend to render the blowing of a whistle and the ringing of a bell inadequate, evidence of such conditions is admissible to aid the jury in determining whether under all the circumstances the railroad company has exercised ordinary prudence in giving an adequate and timely warning of the danger created by the approach of its train;
5. In every instance, the rule of due care applies, and if a person of ordinary prudence, under all the circumstances, would have maintained a flagman or watchman or other signaling device at the crossing where the plaintiff was injured, then the failure on the part of the railroad company to furnish such additional warning constitutes negligence; and,
6. Where the evidence shows that a railroad crossing is for any reason peculiarly dangerous and the existing conditions tend to render warning by whistle and bell inadequate, it is a question for the jury whether the degree of care which the company is required to exercise to avoid accidents at the crossing imposes on the company the duty to provide additional safety devices.
The subject is fully annotated and the cases cited in 12 A. L. R., 1213, and 60 A. L. R., 1096.
The indicated error is not rendered harmless by the prior correct statement of general principles of law as to the duty of the defendant to exercise due care or by the preceding instructions of the court as to the duty of defendant to give adequate and timely warning of the approach of its train for, from a consideration of the charge as a whole, it appears that the court below conceived that, as to crossings which are unusually dangerous and hazardous, the defendant owes the traveling public a twofold duty: (1) To give adequate and timely warning; and, (2) To provide a watchman or maintain gongs or some other similar safety device. If, however, we construe the charge on the .first issue as relating only to the one duty to give adequate and timely warning, then there *94is a material conflict in the instructions. Templeton v. Kelley, 217 N. C., 164, and cases cited.
For the reasons stated I am unable to join in the majority opinion, but must vote for a new trial.
Stacy, 0. J., and WiNBORNE, J., concur in dissent.