dissenting: I regard the decision in this case as a very serious departure from recognized principles of the law of negligence, which may have an important and injurious effect on the safety of the *406highway. In all three of its major aspects, I must dissent from the deciding opinion.
I do not agree that the court has been vested with the power to sum up the things done by the defendant in discharge of its duty to furnish plaintiff, its employee, a reasonably safe place in which to work, and to affirmatively declare them to be a sufficient compliance with the rule of the ordinarily prudent man, and that defendant, as a matter of law, was-free from negligence. I do not ágree with the Court in its holding that the defendant Railroad Company, in the performance of its duty to its employee, might rely on the observance by a stranger of the highway regulations, and that defendant was not required to anticipate negligence from that source. I do not agree that any negligence of which Mrs. Elliott may have been guilty was such an intervening or insulating cause as to exonerate the defendant, since it was competent for the jury to find, by applying common sense, that many of the precautions ordinarily prudent men take under similar circumstances, if they had been taken by the defendant, would have greatly reduced the chances that the accident would occur, and other precautions, just as ordinary, would,, without doubt, have prevented it occurring at all.
All these things are matters for the jury.
I confess to an antipathy to legal truisms like “The physician is not an insurer of results,” “The storekeeper is not an insurer of the safety of his customers,” “The master is not an insurer of the safety of his servants,” unless they have an obvious application, or the principle has-been attacked. Otherwise, they usually indicate that we are gathering momentum for a skid. They should not obscure the approach to actual negligence or condone it where found. An insistence that defendant be held to the rule of the ordinarily prudent man in providing the plaintiff a safe place in which to work affords no occasion for it to cry out: “You make me an insurer.” I find nothing approaching that theory urged upon us in the brief.
We are reminded that “what is negligence is a question of law for the court, when the facts are properly determined,” and “the court has the power to say when it exists and when it does not exist.” Under what circumstances is the court permitted to say when negligence exists and when it does not exist ? Under all circumstances, one might infer, since there is no tie-in of this general statement with the facts of the instant ease. To this all-inclusiveness, I demur. The court has no right to exercise such a power over the raw evidence, not a single fact of which it has any authority to “properly determine.” But no matter what may be said as to the power1 of the court to declare what negligence is, or to say when it exists or does not exist upon the facts — all of the rules relating to the exercise of this extraordinary power, whether enlarging *407■or restricting, are focused in one inescapable proposition: Tbe court ■cannot take a case away from tbe jury unless, taking tbe evidence in tbe light most favorable to tbe plaintiff, only a single inference can be drawn from it by reasonable minds, and tbat inference is unfavorable to tbe plaintiff. Approach it bow we may, there is no compromise with this rule.
It is of tbe essence of tbe standard of duty we employ — tbe rule of tbe ordinarily prudent man — that these duties are relative, not absolute. Nevertheless, they are positive; they are duties which may not be ignored ; they are duties of tbe master, not those of a stranger.
Tbe section foreman met tbe demand to furnish tbe plaintiff a reasonably safe place in which to work in a simple and forthrightly manner— be rolled out a dump car in tbe lane of traffic a few yards from tbe crossing and rested bis case on tbe public conscience, tbe statutes in such case made and provided, and tbe bureau of statistics. Tbe majority of tbe Court seem to bold tbat reliance on tbe statutes, at least, must be accepted as a saving faith. I incline to tbe view tbat faith without works is dead. This obstruction was about two feet high, bad banging from it a dingy red flag, and was not attended in any way, nor was it protected by any warning sign down tbe road or by a flagman. No lookout was kept, nor was any person stationed in a position to warn motor vehicle drivers either of tbe barricade or tbe fact tbat persons were working in tbe road behind it. There was tbe usual crossing sign, but bow either this or tbe knowledge tbat she was approaching a crossing could give any warning to Mrs. Elliott tbat there were men working in tbe highway at tbe crossing, or tbat a dangerous obstruction bad been placed in tbe lane of travel less than ten yards from where tbe plaintiff was working, is not explained. Since tbe road was straight and Mrs. Elliott was traveling in her own right side lane, tbe obstruction was completely bidden until tbe car in front suddenly turned aside and left it visible, almost at tbe moment of tbe crash. This is not noted here for tbe purpose of exonerating Mrs. Elliott from negligence. It is set down so tbat it may be made clear under what circumstances tbe court permitted tbe defendant to appropriate her negligence as a part of its own defense against tbe innocent plaintiff, and as a complete exoneration of its own conduct. Tbat phase of tbe case will be discussed later.
Tbe plaintiff received no warning of tbe approach of tbe car from bis foreman or any other person, although tbe evidence discloses tbat tbe foreman could have seen tbe Elliott car approaching tbe crossing at a speed now claimed by defendant to have been unlawful and dangerous.
Placing and maintaining this unattended and unwarned of obstruction in tbe highway was in itself negligence, unrelieved by any negli*408gence of tbe unfortunate driver. Keiper v. Pacific Gas & Elec. Co., 36 Cal. App., 362, 172 P., 180; Jackson v. City of Malden (Mo. App.), 72 S. W. (2d), 850; Paup v. American Telephone & Telegraph Co., 124 Neb., 550, 247 N. W., 411. It was also under tbe circumstances, whatever its purpose, a violation of tbe laws prohibiting obstructions in tbe highway.
If tbe defendant was negligent in this regard, as tbe jury might have found, tbe effect of tbe opinion is, in this connection at least, to exonerate tbe defendant company from liability, because, as contended, Mrs. Elliott ought to have discovered its negligence toward its own employee in time to have avoided tbe injury.
But I pass to tbe more important evidence of defendant’s negligence found in tbe omission of precautions which tbe jury, if permitted, might have found to indicate a want of due care.
We cannot travel any distance on tbe highways without coming upon and observing practices and devices which prudent men employ as safety measures under like circumstances. They are matters of common knowledge and experience. At proper distances from the point of danger we find signs, “Danger, Men Working,” “Slow,” “Barricade 500 feet ahead,” “One-Way Road”; and where tbe highway has been narrowed by barricade we find men posted to slow traffic and warn of the condition ahead in apt time. Neither the court nor the jury can say that any one or more of these specific things should have been done, but in the light of what was done and whai was omitted, the jury has the right to consider these things as bearing upon the question whether the defendant Railroad Company had given its employee a safe place to work, and had properly protected him, according to the rule of the ordinarily prudent man, under the circumstances as they existed.
Here we must note that plaintiff testified, and this was uncontradieted, that the custom of the defendant had been to place a flagman on each side of the crossing when men were at work in the highway, or a warning sign down the road “Men Working.” I copy this here, as it is omitted in the statement and main opinion:
“Q. You have been with them long enough to know what the custom and practice of the railroad has been with them for two years with respect to warnings down the railroad track?
“A. Yes, sir.
“Q. What kind of warnings have they been giving in the two years as a matter of custom?
“A. Sometimes have two boys flagging, one on each end with a flag, and another time we have had a sign down the road ‘men working.’ ”
The opinion frankly holds that the defendant had the right to rely on traffic rules and regulations relating to the conduct of a third party, *409•or stranger; that tbe defendant in tbe performance of its duty to its own employee was not required to anticipate negligence on tbe part of .■such third person in nonobservance of these rules' — thus ruling out tbe possibility of concurring negligence. This is, in fact, tbe basis of tbe ■decision. It was, and is, necessary to tbe conclusion reached by the ■Court.
Speaking of defendant’s duty to plaintiff to exercise ordinary care in providing and maintaining reasonable warning to travelers upon the highway of the presence of plaintiff at work on tbe crossing in the highway, it is said in the opinion: “In tbe performance of this duty, •and bearing upon tbe care to be exercised by it, tbe defendant Railroad Company, in accordance with tbe general rule, bad tbe right to assume that its codefendant, Mrs. Elliott, and others using tbe highway, would ■exercise ordinary care and observe tbe law of tbe road in tbe operation •of their automobiles.”
And of the care required of defendant: “Nor was it required, in ■exercise of sucb care, to anticipate that she would violate the provisions of tbe statute with regard to overtaking and passing and following motor vehicles traveling in tbe same direction. Public Laws 1937, chapter 407, sections 112 (c) and 114 (a).” There is no mistaking tbe absolute character of tbe immunity thus extended.
I find many cases cited in tbe opinion which bold that an injured person was not required to anticipate negligence on tbe part of one whose negligence caused tbe injury — a sound principle which I am not disposed to dispute, although this Court has been somewhat frugal in its •application. Watkins v. Raleigh, 214 N. C., 644, 200 S. E., 424. But there is a noticeable and, I think, necessary, break with authority when it is attempted to extend this principle to the employer, who is not on the receiving end, so as to transfer to him, as an immunity, a merely logical protection afforded to the victim of a negligent injury — for •example, its own employee. I consider it both novel and dangerous. Taken at its face value, as promulgated by the Court, it wipes out tbe doctrine of concurring negligence.
' I think it is safe to say that this theory is not accepted by textwriters on tbe subject, is opposed to current legal opinion throughout the country, and is at variance with the bolding of this Court. Groome v. Davis, 215 N. C., 510, 2 S. E. (2d), 771; Shearman and Redfield on Negligence, 6th Ed., Vol. 1, section 38-A; Harper, Law of Torts, section 123; Restatement of the Law, Negligence, Torts, p. 1198; Turner v. Page, 186 Mass., 600, 72 N. E., 329; Hinnant v. R. R., 202 N. C., 489, 163 S. E., 555.
Tbe laws of the highway, and tbe regulations relating to its use which have tbe force of law, have put specific duties and burdens on those *410operating motor vehicles wholly unknown to the common law, under which the rule of the prudent man was developed, and under which the principle (always much qualified and restricted) that one is not required to anticipate negligence on the part of another found its limited application. Groome v. Davis, supra. The right of any person to rely upon the strict observance of a highway regulation by another has always been relative, in no sense absolute, usually to be left with the jury upon the facts, even when we are considering the rights between the injured party and the tort-feasor. It has no application when we are dealing with the interrelated conduct of two or more persons charged with the violation of duty to a third person who is free from negligence, except on the question of reasonable foreseeability, which of itself is ordinarily a matter for the jury; always so when, as with any other fact, reasonable minds might draw different inferences. We are here dealing with the rights of such a third person. In so far as he is concerned, those things which according to common experience are likely to happen on the road when there is a lack of due care on the part of the person wlm owes him the duty, must be considered within the limits of foreseeability, regardless of how they arise. The failure to take them into account will bring the resulting injury into the category of natural and probable consequence.
Speaking to this identical question, it is said in Queeney v. Willi, 225 N. Y., 374, 122 N. E., 198: “Courts should not speak too confidently in determining as a matter of law what may be ignored by prudent people, whose duty it is to be reasonably careful for the personal safety of others.” The prudent man must have regard for “occasional negligence, which is one of the incidents of human life.” Restatement of the Law, supra, p. 1198.
In the same connection, and upon the question of foreseeability, we find in Shearman & Redfield on Negligence, 6th Ed., Vol. 1, section 38-A, the following:
“The familiar proposition that one is ordinarily under no obligation of duty to foresee or anticipate the negligence of another has no application. It is merely a question of fact for the jury.”
The effect of the main opinion is to make the test of the employer’s duty to his employee to lie in the duty which the defendant was under to its codefendant and other travelers upon the highway, to give to them proper warning; regardless of the fact that negligence on their part might invade the too scanty provision — if the jury should -so find— which it made for the safety of its own employee. The slightest contributing negligence on the part of such codefendant, or other third person, would relieve the defendant company from liability to her, and also would have the extraordinary effect of relieving the defendant from *411liability to its employee, since defendant was not required to anticipate .sucb negligence.
A person is not excused from liability for failure to perform a duty because another failed to perform his duty. Wilmington Star Mining Co. v. Fulton, 205 U. S., 60, 51 L. Ed., 708; De Funiak Springs v. Perdue, 69 Fla., 326, 68 So., 234; Pastene v. Adams, 49 Calif., 87, 90; Newcomb v. New York Central Railway Co., 169 Mo., 409, 69 S. W., 348.
The duty of the employer to furnish the employee a safe place in which to work is always measured by the rule of ordinary prudence. "When that place of work is ambulatory and becomes seated in the middle •of a much-used highway, exposing the employee to new hazards, the mere existence of laws on the statute books supposed to prevent or curtail accidents, which as a matter of common experience are frequently violated, will not serve as a substitute for the performance of the duty •demanded by ordinary care.
It is said that the road to Hell is paved with good intentions. In the same manner, figuratively speaking, there is scarcely a mile of highway in this State, or, indeed, in the whole country, that is not monumented with violations of traffic laws. Keeping the administration of law in reasonable nearness to the realities of life and social facts, we cannot blind ourselves to actual conditions we know exist — to the experience flooding in upon us every day through press, radio, and the medium of our own eyes. Neither can the defendant. Even the ostrich, believe it or not, no longer buries his head in the sand. In the exercise of ordinary care for the protection of its employee, it was the duty of the defendant to take into consideration those dangers which are within «very-day experience, from whatever source they come, and make such provision against them as ordinary prudence requires. Modern legal opinion recognizes the right of the employee to rely upon the rule of the ordinarily prudent man as exemplified in the conduct of his employer, rather than to depend upon its vicarious interpretation by a third person or stranger to whose protection he has not committed himself.
“Consequences caused by defendant’s conduct and an intervening independent but foreseeable negligent act of a third person are proximate, and the intervening negligence does not insulate the defendant’s original fault. While some cases have been decided contrary to this rule on the theory that we need not anticipate the failure of others to conduct themselves in a lawful manner, the modern view is as stated. Experience assures us that men do in fact frequently act carelessly, and when such action is foreseeable as an intervening agency, it will not relieve the defendant from responsibility for his antecedent misconduct.” Harper’s Law of Torts, p. 265.
*412There can be no question here of insulated negligence. If omissions of duty existed of the character pointed out in the complaint and indicated in the evidence, bearing as they do preventively upon the very factors in the conduct of Mrs. Elliott, from which the Court supposed the injury to have come, this negligence cannot be separated out from the chain of causation, and its incidence upon the result. There is-never any insulation of the primary negligence except when the intervening negligence of the responsible agency is the sole, or at least the excluding, proximate cause of the injury. Otherwise, the negligence is at least concurrent. Hinnant v. Power Co., 187 N. C., 288, 121 S. E., 540; Harwood v. R. R., 192 N. C., 27, 133 S. E., 180.
Where there is omission of a continuing duty, there is continuing negligence. We are not here dealing with a single act of negligence on the part of the defendant to which the conduct of the intervening agency is wholly unrelated. Too, the question is but one phase of proximate cause. Recurring to the omissions on the part of the defendant upon which the plaintiff predicates negligence, I feel sure that no candid mind' can deny that some of them which the jury might consider (since they regard devices commonly employed) would have altogether prevented the negligence and conduct held to insulate defendant’s negligence. So' long as this primary negligence contributes to the final injury, it is not remote; it is proximate.
“The intermediate cause . . . must be self-operating and disconnected with the primary wrong.” Munsey v. Webb, 37 App. (D. C.), 185, 189; Ward v. Inter-Island Steam, Nav. Co., Ltd., 22 Hawaii, 66, 72; citing Cyc.; 45 C. J., p. 926, section 489.
It is to the quality of the intervening act and not to the fact of its subsequence that we must look to determine its effectiveness in displacing the original negligence as proximate cause. Shearman & Redfield on Negligence, 6th Ed., Yol. 1, section 34. In no case where there' is, as here, a logical interdependence, which the jury might find, between the original negligence and the intervening negligence, is the original tort-feasor relieved of liability. The negligence is concurrent.
Here we come again to the question of foreseeability and to the action of the court in taking the case away from the jury as a matter of law. This power does not seem to be predicated on the assumption that the negligence or behavior of Mrs. Elliott was unforeseeable because of its-extraordinary character. Rather, the opinion seems to adhere to the original theory, prominent throughout the case, that the defendant was not bound to anticipate even ordinary negligence on the part of the traveler. As a matter of fact, there is nothing in the record to bear out any assumption that Mrs. Elliott’s conduct or negligence was of such an extraordinary character as to be unforeseeable. In the opinion her *413negligence is said to consist in the failure to observe certain sections of the law relating to overtaking and passing and following motor vehicles, traveling in the same direction; that she drove at a speed of above 45. miles per hour; that she followed the leading car too closely; that she failed to see the barricade. What is so extraordinary in this catalogue of things which occur every day, sometimes with immunity, often with disaster ?
Negligent she may have been, but in so far as this plaintiff is concerned, the disaster began when, as the jury might well have found, the defendant company omitted the duty of giving timely warning that men were working in the highway, and placed a dangerous obstruction in the line of travel, especially of such a character as to be concealed, as it was, by the motor vehicle traveling ahead of her in the same direction. This obstruction was a patent factor in the final smash and injury to-plaintiff. It is a typical instance of concurring negligence, and the plaintiff may say,, with Mercutio: “A plague o’ both your houses!”
It is a mistake, therefore, to magnify Mrs. Elliott’s negligence into “unforeseeability.” With the same respect for the sincerity of my colleagues that I hope to have accorded my own, we have only succeeded in making a bad precedent if we attach such a label to the facts of this case as will make the negligence of Mrs. Elliott of such a character as to make it the sole proximate cause of the injury. Any distortion of the standards applied to the intervening negligent act will correspondingly affect the liability of the original tort-feasor for his own negligence, however great and however it may persist as a contributing cause.
It is not necessary that the exact manner and form of the injurious occurrence should be within the limit of foreseeability. Such prescience is not required either by law or reason as a condition of liability. It is enough if the person guilty of the negligent act or omission of duty could reasonably foresee that it was not improbable that something might occur not wholly unrelated in origin and kind to the actual happening. Hudson v. R. R., 142 N. C., 198, 55 S. E., 103; Drum v. Miller, 135 N. C., 204, 47 S. E., 421; White v. Sharp, 219 Mass., 393, 107 N. E., 56; Milwaukee, etc., R. Co. v. Kellogg, 94 U. S., 469, 24 L. Ed., 256. “The liability of a person charged with negligence does not depend upon the question whether, with the exercise of reasonable prudence, he could or ought to have foreseen the very injury complained of; but he may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his. act.” Fishburn v. Burlington, etc., Railway, 727 Iowa, 483, 103 N. W., 481; Edginton v. Burlington, etc., Railway Co., 116 Iowa, 410, 90 N. W., 95, 57 L. R. A., 561; Shearman & Redfield on the Law of Negligence, Vol. 1, 6th Ed., section 34.
*414At any rate, tbe question whether a supervening negligent act, or an intervening act, in the technical sense, could have been foreseen reasonably, has been consistently dealt with by juries inamemorially in determining proximate cause, and the question as presented in the case at bar involves considerations of fact and of fact inference with which the jury alone should be permitted to deal. Balcum v. Johnson, 177 N. C., 213, 98 S. E., 532; Hinnant v. Power Co., supra; Earwood v. R. R., supra; Hinnant v. R. R., supra, 493.
Divested of confusing technicalities, I think the case boils down to this: The jury might well have held, under the evidence, that the defendant omitted many precautions which common sense, experience of the road, and the practice of prudent men, indicate as reasonably necessary to the safety of men working in the avenue of travel; and yet it is held, as a matter of law, that the defendant is free from negligence. "We have an occurrence which the" evidence tends to show, and the jury might have found, was the natural and probable result of these omissions ; and the Court holds, as a matter of law, it was not foreseeable. We have an injury which the jury might well have inferred would not, and could not, have happened except for the contributing negligence of the defendant — and the Court holds that the supposed negligence of Mrs. Elliott intervened and insulated it from liability.
In this dissent I am not departing from or varying anything this Court has heretofore said upon this subject. There is not a case cited in the main opinion relating to intervening negligence which I might not also cite in support of the views here presented. All of them, where motion to nonsuit was sustained, proceed on the principle (and that alone) that in those particular cases only a single inference as to foreseeability could be drawn. Hinnant v. R. R., supra, 493; Harton v. Telephone Co., 141 N. C., 455, 54 S. E., 299; Taylor v. Stewart, 172 N. C., 203, 90 S. E., 134; Lineberry v. R. R., 187 N. C., 786, 123 S. E., 1. That is not the case here. At every step in the process of taking this case from the jury, as a matter of law, the presence of undetermined fact, like Banquo’s ghost, haunts the exercise of judicial power.
In the very complex situation disclosed by the facts, the inferences cannot be all one way and against plaintiff. Cole v. Koonce, 214 N. C., 188, 198 S. E., 637. The case should have been left to the jury, with appropriate instructions.
I am authorized to state that Justice Clarlcson joins in this dissent.