BROWN, J., dissents. WALKER, J., concurs in dissenting opinion. Civil action to recover damages for the alleged killing of intestate by defendant company. At close of plaintiff's evidence, on motion, there was judgment of nonsuit, and plaintiff excepted and appealed. It has been repeatedly held in this State that the "railroad engineer of a moving train who sees on the track ahead a pedestrian, alive and in the apparent possession of his strength (741) and faculties, the engineer not having information to the contrary, is not required to stop his train or even slacken its speed because of such person's presence on the track. Under the conditions suggested, the engineer may act on the assumption that the pedestrian will use his faculties for his own protection, and will leave the track in time to save himself from injury" (Abernethy v. R. R., 164 N.C. p. 91, citing Talleyv. R. R., 163 N.C. pp. 567 and 570; Exum v. R. R., 154 N.C. 408;Strickland v. R. R., 150 N.C. 4; Beach v. R. R., 148 N.C. 152), a position that has been allowed to prevail where the person injured was sitting down on the track or cross-ties, apparently alert and attentive, and with nothing to indicate that he was unconscious of the train's approach. Holder v. R. R., 160 N.C. p. 3, citing Clegg v. R. R.,132 N.C. p. 293; McAver v. R. R., 129 N.C. p. 380; Hord v. R. R.,129 N.C. p. 305, and Upton v. R. R., 128 N.C. p. 173. Again, it was held, among other things, in Dean's case, 107 N.C. 686: "If the engineer discover, or by reasonable watchfulness may discover, a person lying on the track asleep, or drunk, or see a human being who is known by him to be insane, or otherwise insensible to danger, or unable to avoid it, upon the track in his front, it is his duty to resolve all doubts in favor of the preservation of life, and immediately use every available means, short of imperiling the lives of passengers on his train, to stop it," a principle approved by this Court in many decisions on the subject,Smith v. R. R., 162 N.C. p. 29; Edge v. R. R.,153 N.C. p. 212; Sawyer v. R. R.,145 N.C. p. 24; Whitesides v. R. R., 128 N.C. p. 229; Lloyd v. R. R.,118 N.C. p. 1010; and extended to include the case where one was sitting on the cross-tie, and it was evident from his position or otherwise that he had no present control of his faculties, Henderson v. R. R.,159 N.C. p. 581; Smith v. R. R., supra; and, also, when he was in a position of such *Page 834 evident peril that ordinary effort on his part was not likely to save him from injury. Snipes v. Manufacturing Co., 152 N.C. pp. 42 and 46, citing, among others, Clark's case, 109 N.C. pp. 430-33-34, and Bullock's case,105 N.C. 180.
Considering the evidence in the light of these decisions, we are of opinion that there was error in the order of his Honor directing the nonsuit. As we understand the record, and under the rule uniformly observed, that when a nonsuit is ordered the testimony making for plaintiff's right of action must be taken as true, and viewed in the aspect most favorable to him, there were facts in evidence tending to show that on or about 23 December, 1911, in the early part of the night of that day, the intestate was run over and killed by a passenger train of defendant coming from Kinston towards LaGrange; that at the point of the killing the railroad track was nearly level and (742) straight for a distance of 1 1/2 to 2 miles from Fields Station beyond, to the point where intestate was killed; that a short while before the killing, a witness saw the intestate and talked with him, and he was then sober and was going down the railroad, or on a path along the side of the track, just about train time, and was killed about 200 yards from Dawson's Crossing, a place where the county road crosses the railroad.
A witness by the name of Noah Colie, testifying for plaintiff, said, among other things, that at the time of the killing he was driving along the county road in a buggy, coming from LaGrange, and as he came near the crossing, his mule being afraid of the train, he got out of the buggy to hold his mule and was looking down the track towards the train; that he could see the headlight of the engine for two miles from the time it came around the curve at Fields Station, the road being straight for a mile and a half, and he could see practically right down the track, and was looking towards the train, and if a man had been walking along the track or standing up he could have seen him, but if he had been "lying down he could not have seen him" at the point where he was killed, because there was a cut there, "gradually growing lower," that shut off the view when the man was lying down. This point was about 200 yards from where he was standing, and between him and the approaching train. In the language of the witness on this point: "When I saw the train coming around the curve, my point of view was practically right down the track; in other words, I was looking right down the track towards Mr. Fields. I did not see anybody," and again: "I could not see a man when he was lying down, where the accident occurred, because the cut there obstructed my view."
Another witness, by the name of Thomas, testified that at a subsequent time he had gone to the place with the witness Colie, and, standing *Page 835 where Colie was, he "saw a man walking down the track towards Kinston from the point where Mr. Colie was to where Mr. Hill was killed, but, when he lay down on the track at that point, he was out of sight; you could not see him. You could see him when he stood up, but could not see him when he lay down."
It was further proved that, latterly, the plaintiff, while ordinarily a strong man and able to work, was subject to epilepsy, and was, at times, liable to attacks in which he would lose consciousness and give way; that he had had such an attack the day before he was killed, and witnesses said that, in the times they had seen him so, he would have fallen if he had been by himself or not in some way supported, etc., etc.
True, our decisions are to the effect that when it is shown merely that a person on the track of a railroad company, without license, express or implied, has been run over and killed by one of its trains, liability may not be imputed (Clegg v. R. R., and authorities cited); but the present case cannot be brought within any such (743) principle. As the case goes back for another trial, we do not consider it desirable to dwell at length on the evidence offered in support of plaintiff's claim, but on testimony for plaintiff tending to show that a witness was looking down a straight track for a mile and a half to two miles, seeing the headlight of the engine for that distance; that the deceased was run over and killed between the witness and the approaching engine; that he could have seen the deceased if he had been standing up, and did not see him, but, at the point where he was killed, the witness could not see him when lying down, owing to a small cut on the railroad, and the witness, 200 yards off, standing just to one side of the track, on the county road, and the further fact stated, that the deceased had of late developed a case of epilepsy, throwing him at times into spells or fits which were likely to render him unconscious and cause him to fall, and that he had just had such an attack the day before, we are of opinion that there are facts in the record, amounting to legal evidence, and which tend to show that the deceased, at the time he was killed, was down and helpless on the track, and that this and the issue as to defendant's liability must be referred to the jury for decision. Barnes v. R. R., 168 N.C. p. 512;Tyson v. R. R., 167 N.C. p. 215; Smith v. R. R., supra; Arrowood v. R.R., 126 N.C. p. 629; Powell v. R. R., 125 N.C. p. 371.
There was error in the order of nonsuit, and the same will be set aside and the cause submitted to the jury.
Error.