Sparger v. North Carolina Public-Service Corp.

*777 Per Curiam. It is found by tbe jury that both parties were guilty of negligence — the defendant, in running at- an excessive speed and failing to give proper warning of the approach of the street car; and the plaintiff, in attempting to cross the track of the street railway company in a careless manner; and the evidence fully supports the findings. There was no serious controversy as to this part of the case. But defendant contends that there was no reason for submitting the third issue, as to the ability of defendant’s servants to stop the car and avoid the collision, after its servants had' observed the iilaintiff’s dangerous predicament. There was relevant evidence for the jury to consider upon such an inquiry, and the jurors might determine for themselves whether the motorman could have stopped the car after seeing the plaintiff’s danger and before reaching the buggy. There was no use of the gong or other signal to warn plaintiff of the danger of remaining on the track or of going upon it. Even though he may have seen the car afterwards, it was too late to leave the track entirely before his buggy was stricken by the car and overturned. There was evidence as to this feature of the case, and also evidence that plaintiff acted with promptness after discovering his danger. If the motorman had sounded the gong, seasonably, it would have aroused the plaintiff to the peril of his situation, and he would have had more time to escape the injury. The case is governed by the principles of Norman v. R. R., 167 N. C., 538, though not like it in all respects. See, also, Davis v. Traction Co., 141 N. C., 134; Wright v. Mfg. Co., 147 N. C., 534; Smith v. R. R., 162 N. C., 30. The Court said, in Davis v. Traction Co., supra: “If a car is moving at a lawful speed — that is, not an excessive rate of speed — and a person enters upon the track, the defendant is required to exercise ordinary care — give signals, lower the speed, and, if it appears reasonably necessary, stop the ear.” The same language was quoted and approved in Wright v. Mfg. Co., supra. There was evidence of negligence on the qiart of defendant after its servants either did discover or could have discovered the danger in which plaintiff had been placed by his own inattention and want of care for himself. No error.