dissenting in part: The majority, after analyzing the complaint, state that “the alleged negligence of defendant upon which plaintiff relies is the fact that the oncoming train had been turned onto this section of track (between Parkton and the signal tower to the north) without warning to those in charge (of the train) that Graham and *351Gibson were there with the motorcar, not the failure of the locomotive engineer to stop the train after he saw or could have seen them.” It is stated in effect that the allegations of speed, blind curve in the cut north of Rock Fish Creek, and the failure to ring the bell or blow the whistle constitute window dressing which alone would not support a recovery. I accept that interpretation of the complaint.
The testimony offered in support of this single alleged act of negligence presents these questions for decision: (1) Did the defendant, through its dispatcher, commit an act of negligence when it turned the unscheduled Bennettsville freight onto the northbound track within thirty minutes after having given Graham one-hour clearance for said track without giving any notice to those in charge of said freight that Graham and his companion had gone to repair the signal, and if so, (2) was. such negligence one of the proximate causes of the death of plaintiff’s intestate?
In the first place I cannot perceive that defendant breached any duty it owed the deceased when it let the freight proceed northward on the northbound track. The deceased needed clearance on the northbound track to make the trip to the signal tower. This he received. He had reached his destination when the freight entered upon the track. The dispatcher knew that the deceased had had ample time within which to reach his destination, and that it was the duty of deceased to make his return trip on the southbound track. There was no cause for the dispatcher to anticipate or foresee that the use of the northbound track by the freight would in any wise endanger either Graham or Gibson. He had reason instead to believe that they would return to Parkton on the southbound track.
If such conduct must be considered an act of negligence, it in no wise contributed to the death of plaintiff’s intestate. It ceased to play “a substantial and proximate part” in the collision and resulting death so soon as the deceased discovered the approach of the train in ample time to stop the motorcar, leave the track, and reach a zone of safety. That he had ample time so to do is conceded. From that time on until the final crash, his life or death depended entirely upon what he should decide to do. Therefore, I am unable to perceive how it may be said that the action of the dispatcher in turning the train onto the northbound track without warning the train crew that the deceased and his companion were somewhere to the north was a proximate cause of the death of plaintiff’s intestate.
But the majority hold that the deceased may be excused for his conduct on the ground that he owed his employer the duty to protect the property entrusted to his care against damage or destruction. To say that this duty was so impelling that he must perforce risk his life in its performance would seem to me to carry it to the extreme. Self-preservation is said to *352be the first law of nature. To say that the rules of the company overrode this law and bound the deceased to risk his own life to protect the motorcar from damage or destruction or suffer the penalty of a discharge and excuses his failure to seek a place of safety in time to avoid injury or death is but to attribute to his employer — and the law itself — a stone-heartedness beyond my comprehension.
The law as I understand it required him, when in the presence of a known danger, to use diligence to avoid the threatened injury or death. All other considerations faded into insignificance.
The deceased was negligent in two material respects, and in my opinion such negligence on his part constitutes the sole proximate cause of his injury and death.
When he began his return trip, it was his duty to use the southbound track. A telephone was available so that he could get clearance on that track. He elected to proceed southward on the northbound track when he knew, or should have known, that the engineer of a train proceeding northward would have no cause to anticipate that he would meet another train or motorcar going in the opposite direction on the same track. Then he proceeded to narrow the gap between his motorcar and the approaching train to the point a collision between the two became inevitable.
The deceased discovered the presence of the approaching train in ample time to stop his motorcar, leave the track, and reach a zone of safety. The peril was apparent for sometime before the collision. The way of escape was open. The duty to get off the track, out of the way of the oncoming train, was impelling. Yet he elected to remain on the track until the very moment of the collision, and he did so knowing the engineer could not stop his train within the available distance so as to avoid striking him. It is not a case of last clear chance or hidden peril. Whatever his motives — and no doubt they were good — they did not, in my opinion, excuse his conduct or shift the blame to the defendant. If he first thought he had time to remove the motorcar, it soon became apparent he could not do so. Certainly this is so if the train was traveling as plaintiff’s evidence tends to show.
The record, in my opinion, discloses that the conduct of the deceased evidenced a reckless indifference to his own safety, which conduct on his part was the sole proximate cause of his injury and death. I, therefore, vote to sitstain the motion for judgment of involuntary nonsuit.
Passing the question of nonsuit, I agree that (1) the original complaint constitutes a defective statement of a good cause of action, and that the order allowing amendment thereof rested within the sound discretion of the presiding judge, and (2) the conflict in the charge on the question of damages requires a new trial.
WiNBORNE, J., concurs in dissent.