Franklin v. Linville River Railway Co.

*719 BbogdeN, J. The evidence for plaintiff, viewed in its most favorable light, tends to show that plaintiff came out of a store near the track of the defendant. He looked and saw to the north a lever car or motor car of the defendant, apparently facing north, and standing still. The plaintiff then walked south about twenty-five or thirty yards to a public crossing, and at that place, attempted to cross the track when he suddenly heard a noise of something running. He turned his head and the motor car of defendant was being backed over said crossing, the motorman facing north and backing south, and bending down, apparently looking at some part of the machinery. The plaintiff was struck and injured. The same rule of liability applies to a railroad motor car in backing over a crossing with respect to notice as to engine or box-car, for the reason that “both can wound and kill.” Hill v. R. R., 166 N. C., 592. The crossing at which plaintiff was injured was a grade crossing and had been used as a public crossing for many years. “It is the duty of an engineer in charge of a moving train to give some signal of its approach to the crossing of a public highway over a railway track, or to a crossing which the public have been habitually permitted to use, and where he fails to do so, the railroad company is deemed negligent and answerable for any injury due to-such omission of duty.” Russell v. R. R., 118 N. C., 1108; Bradley v. R. R., 126 N. C., 738; Farris v. R. R., 151 N. C., 487; Bagwell v. R. R., 167 N. C., 611; Goff v. R. R., 179 N. C., 216; Perry v. R. R., 180 N. C., 290; Earwood v. R. R., ante, 27. The plaintiff testified that he heard no signal prior to or at the time . he stepped upon the crossing. This is some evidence that no signal was given. Goff v. R. R., 179 N. C., 216; Perry v. R. R., 180 N. C., 290; Earwood v. R. R., supra. The law makes it the duty of the person using a crossing of a railroad track to make diligent use 'of his senses in order to discover whether there js danger of injury or collision. However, as stated by Allen, J., in Horne v. R. R., 170 N. C., 650: “In other words, if it is admitted that both the defendant and the intestate of plaintiff were negligent, the negligence of plaintiff’s intestate does not bar recovery unless it was the proximate cause of the injury, and the question as to whether it was the proximate cause is for the jury, if two reasonable minds could come to different conclusions upon the question,” etc. ¥e cannot say, as a matter of law, that the plaintiff was guilty of contributory negligence upon his own evidence, and, therefore, the questions of contributory negligence and proximate cause should be submitted to the jury. *720 In fairness to the litigants, it is deemed inadvisable to discuss at length the principles of law involved, for the reason that we are of the opinion that there was sufficient evidence to be submitted to the jury, and the case should be tried upon its merits, free from any intimation by this Court. Reversed.