The exceptions chiefly relied on by the plaintiff’s counsel in his carefully prepared brief are to the opening paragraph of his Honor’s charge, upon the ground that it is an argument in behalf of the defendant, and to the charge that “In order to enable you to answer the first issue ‘Yes,’ you must find first that he was struck by a train of the defendant; that that train had no electric headlight, as required by statute, and that not having the headlight was the cause, and the proximate cause, of the injury. It does not make one particle of difference whether there was any headlight or not. That might have been negligence, and I tell you, as argued by Mr. Shaw and admitted by Mr. Rose, it was negligence for them to run a train without an electric headlight, because the statutes so require. But that would be immaterial unless the train that did not have an electric headlight hit him, and would not have hit him if it had had an electric headlight. Do you understand that?”
The plaintiff does not except to the whole of the first paragraph of the charge. He omits from the exception the concluding sentence, which is an appeal to the jury to consider the evidence coolly and dispássionately and to answer the issues according to the law and the evidence.
The part excepted to, standing alone, might be objectionable; but when considered as a whole, as it is our duty to do,' it contains no expression of opinion upon the facts, nor is it an argument in behalf of either party, and, on the contrary, it is an earnest invocation to the jury to free themselves from bias or sympathy and to decide the question submitted to them upon the evidence.
As was said by Associate Justice Walher, speaking for the Court in Aman v. Lumber Co., 160 N. C., 374: “The criticism of the charge by defendant’s' counsel might be just and the exception to it well taken if it could be restricted to the detached portion thereof which is the subject of attack, as it is not quite as explicit, perhaps, as it should have been; but when these isolated sentences or extracts are construed with the *395other parts of the charge, and reviewing the latter in its entirety and thus reading it as a whole, as we are required to do (S. v. Exum, 138 N. C., 599; S. v. Lance, 149 N. C., 551), the meaning of the judge could not well have been misunderstood by an intelligent jury. We have recently said that 'The charge is to be considered as a whole in the same connected way in which it was given, and upon the presumption that the jury did not overlook any portion of it. If, when so construed, it presents the law fairly and correctly to the jury, it will afford no ground for reversing the judgment, though some of the expressions, when standing alone, might be regarded as erroneous.’ Kornegay v. R. R., 154 N. C., 389; Thompson on Trials, sec. 2407.”
We are also of opinion that it was the duty of his Honor to charge the jury as he did, that the burden was on the plaintiff to prove that the failure to have a headlight was the proximate cause of the death of the plaintiff’s intestate, and that they must so find before they could answer the first issue “Yes.”
The authorities fully sustain the position of the plaintiff that it is negligence to run a train without a headlight at night along a track frequented by the public; but a plaintiff cannot recover upon proof of negligence alone. lie must go further and prove that the negligence complained of was the cause of his injury. Crenshaw v. R. R., 144 N. C., 314; Pritchett v. R. R., 157 N. C., 101; Henderson v. Traction Co., 132 N. C., 784.
In the first of these cases the Court said: “The burden is always on the plaintiff to show by a preponderance of the evidence that the defendant committed a negligent act, and that it was the proximate cause of the injury. The two facts must coexist and be established by the clear weight of the evidence before a case of actionable negligence is made out. Brewster v. Elizabeth City, 137 N. C., 392”; in the second: “In all courts where the common law is administered it is held that one cannot recover damages upon proof of negligence alone, and that he must proceed further and show that the negligence of which he complains was the real proximate cause of the injury”; and in the last: “It is generally held, and this we regard as the true doctrine, that the element of proximate cause must be established, and it will not necessarily be presumed from the fact that a city ordinance or statute has been violated. Negligence, no matter in what it may consist, cannot result in a right of action unless it is the proximate cause of the injury complained of by the plaintiff.”
In Powers v. R. R., 166 N. C., 599, the principle was applied in an opinion written by the Chief Justice, .and the following charge was approved: “If you should find from the evidence, by its greater weight, that the train was being operated without a headlight, that is negligence; *396and if you should find tbat as a sequence of tbat negligence tbe plaintiff received bis injury, you would answer tbe first issue ‘Yes.’ ”
Again in Saunders v. R. R., ante, 375, tbe Court said, in an unanimous opinion: “Tbe Federal courts and tbe courts of tbis State concur in bolding tbat a failure to exercise tbe diligence and care of a person of ordinary prudence, or a failure to perform a duty due from one to another, is negligence, and tbat if tbis breach of duty is tbe proximate cause of an injury, it is actionable.”
Tbe phrase, “continuing negligence,” used in Stanly v. R. R., 120 N. C., 514, and repeated in tbe Powers case and in others, is strictly accurate when understood to mean tbat tbe negligence began anterior to and continued up to the injury ;■ but such negligence does not absolve tbe plaintiff from tbe duty of showing tbat tbis negligence was tbe proximate cause of bis injury, which is to be inquired of under tbe first issue, nor from tbe duty of exercising ordinary care for bis own safety, which arises in tbe consideration of tbe issue of contributory negligence, tbe burden of tbis issue being on tbe defendant.
It is not tbe absence of tbe headlight, nor tbe impact of tbe train, which determines liability, but tbe impact of tbe train brought about by or as tbe proximate result of tbe absence of a headlight.
To illustrate: Suppose one is at work on an overhead bridge, and without fault on bis part be falls on tbe track 5 feet in front of a rapidly moving train, which is running at night without a headlight, and is killed. Here we have negligence in tbe failure to have a headlight; but there can be no recovery, because tbe same result would have followed if there bad been a headlight, and its absence has bad nothing to do with tbe injury.
Tbe present case is an apt illustration of tbe importance of adhering to tbis principle.
Tbe deceased bad been drinking heavily, and was going from place to place in tbe night-time in bis night-clothes.
Tbe evidence as to tbe cause of bis death is circumstantial, and is consistent with bis coming on tbe track suddenly in front of tbe train, in which event tbe presence of tbe headlight would not have averted death; and tbat tbis theory is permissible is shown by reference to tbe complaint, which alleges tbat tbe deceased was killed “while walking near tbe track, or attempting to cross tbe track of tbe defendant company.”
Of course, if we are in search for technical error, we can find it. We can cut up tbe charge and take tbe single sentence, “It does not make one particle of difference whether there was any headlight or not,” from tbe middle of a paragraph and declare it to be erroneous; but to do so we must violate tbe principle declared in fifty cases, tbat a charge must *397be read as a whole, and not by detached portions, and we will establish a precedent that will render it impossible for any charge to stand the test of an appeal. .
As was said in Revis v. Raleigh, 150 N. C., 355: .“It is the well-settled rule of all appellate courts to read and construe the entire charge of the court and deal with it as a whole. It is not permissible? to make disconnected excerpts and seek to find reversible error. To do so would frequently result in new trials where it was manifest that no prejudicial error was committed or the jury misled.”
When read as a whole, the objectionable sentence means that it makes no difference whether there was a headlight or not unless its absence was the cause of the death of the intestate.
We have examined the rulings upon the evidence and find no error in them.
The refusal to submit a third issue, as to the last clear chance, and the exceptions to.charges upon the issues of contributory negligence and damages, need not be considered, as the jury has answered the first issue against the plaintiff.
The instruction prayed for by the plaintiff, as to the duty of defendant to keep a lookout, could not have been given, because the failure to perform this duty is not alleged in the complaint; and for the same reason the last paragraph of the charge excepted to is sustained.
The theory upon which recoveries are sustained when a person upon the track is killed or injured by a train running in the night without a-headlight, although not apparently helpless, is that the absence of the headlight is negligence, and as its presence would probably give notice of the approach of the train by throwing light on the track and upon the person, the failure to have the light is some evidence of proximate cause.
If so, the principle does not apply if the .injured person is not on the ■ track or near it, and runs into the train.
No error.