
    ABERDEEN AND ASHBORO RAILROAD COMPANY v. SEABOARD AIR LINE RAILROAD COMPANY.
    (Filed 6 December, 1911.)
    1. Railroads — Permission to Use Track — Collision—Time Limit— Negligence — Contributory Negligence — Last Clear Chance — Issues — Evidence—Questions for Jury.
    The plaintiff railroad company applied to the defendant railroad company, a connecting line, for permission to go upon its main line to back cars upon a siding to be taken by the latter’s train, and at first was refused permission on account of the schedule time of defendant’s train, but later, on being informed this train was late, was given ten minutes within which to place said cars. While the plaintiff’s train was on the defendant’s main line preparing to back the cars into position, it was run into and damaged by one of defendant’s trains where the track was straight for a mile and free from obstacles to the view. There was conflicting evidence as to whether the collision took place within or after the ten minutes of the permission: Held, a question for the jury: (1) if the collision occurred within the ten minutes allowed, the issue as to defendant’s negligence should be answered in plaintiff’s favor; (2) the plaintiff’s contributory negligence would depend upon its negligent failure to get its train out of the way in the time limited under the rules of law properly applicable, to be determined on the entire facts relevant to the inquiry, including the fact that it was there by permit from defendant company, and with the purpose at the time of the impact of backing its train upon a siding; (3) if' the collision occurred after the ten minutes permit it would amount as a conclusion of law to contributory negligence, under the duties imposed upon the plaintiff under the circumstances, continuing to the time of the impact; (4) the findings upon the issues of negligence and contributory negligence would exclude the necessity of an issue of the last clear chance.
    2. Same — Proximate Cause — Instructions—Appeal and Error.
    Under the circumstances of this case, instructions as to whether thq plaintiff’s train remaining upon the defendant’s track after the expiration of its ten minutes permit was or was not the proximate cause of the injury received by a collision from defend- ■ ant’s train on its main line, with its imminent chances of arrival: Held, reversible error to defendant’s prejudice, for which a new trial is granted.
    
      3. Railroads — Use of Track — Time Permit — Collision—Negligence— Counter Damage — Questions of Law.
    The plaintiff railroad company received permission from the defendant railroad company for its train to go upon the latter’s main line for the space of ten minutes for the purpose of placing cars upon a siding to be taken by the latter’s train. While doing so, the train of the defendant, imminently expected, arrived and collided with the plaintiff’s train where the track was straight and unobstructed for a mile: Held, whether the collision occurred within or beyond the time limit permitted, the defendant cannot recover on its counter-case for damages, as plaintiff’s entry on its track was by its permission, and the attendant circumstances showed that by the exercise of reasonable care the defendant’s employees had ample opportunity to have stopped its train and avoided the injury.
    Appeal from Justice, Jat May Term, 1911, of Mooee.
    Civil action to recover damages by reason of a collision caused by alleged negligence of defendant company.
    Plaintiff alleged and .offered evidence tending to show that on or about 19 February, 1910, plaintiffs bad a train on tbe main line of tbe Seaboard track at Aberdeen, N. 0., and bad been given proper permit to occupy said track for ten minutes, and witbin thé time tbe train was negligently run into and seriously damaged by train No. 43 of defendant company, being a passenger train going south.
    Defendant answered, denying negligence and charged contributory negligence on part of plaintiff. Defendants, by further averment, alleged that plaintiff's agents and employees were entirely to blame in tbe matter and bad negligently caused tbe collision, thereby great damage was suffered by defendant company.
    On issues submitted, tbe jury rendered tbe following verdict:
    1. Was tbe property of tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint ? Answer: Yes.
    2. Did tbe plaintiff by its own negligence contribute to tbe injury of its property, as alleged in tbe answer? Answer: No.
    3. Notwithstanding tbe negligence of tbe plaintiff, could tbe defendant by tbe exercise of ordinary care have avoided tbe injury to plaintiff’s property ? Answer : Yes.
    
      4. What damage, if any, is tbe plaintiff entitled to recover of tbe defendant? Answer: $8,000.
    5. Was tbe defendant’s property injured by tbe negligence of tbe plaintiff, as alleged and set out in tbe counterclaim pleaded by tbe defendant? Answer: No.
    Judgment on tbe verdict for plaintiff, and defendant excepted and appealed.
    
      H. L. Burns, Douglass, Lyon •& Douglass, and J eróme & Price for plaintiff. 0
    
      Walter H. Neal and Murray Allen for defendant.
    
   HoKE, J.

After full and careful consideration, tbe Court is of opinion tbat tbe cause should again be submitted to tbe jury. There was evidence to tbe effect tbat on 19 February, 1910, a train of plaintiff company was on tbe main line of defendant’s track at Aberdeen,, N. C., with a permit to remain there for ten minutes, tbe evidence tending to show tbat tbe time would expire at 8:46 p. m. It was about tbe schedule time for a passenger train of defendant, No. 43, to arrive at Aberdeen, and plaintiff’s conductor was at first refused permission, but on tbe necessity for it being urged, and No. 43 being reported late after consulting tbe train dispatcher at Hamlet, permission was given and tbe train entered on tbe track as stated, tbe purpose being to back tbe train and leave three sleepers on a siding, tbat they might be attached to a train of defendant company going north. While standing on tbe track and just as it was being signaled to back for tbe purpose indicated, the train was run into by passenger train of defendant company, No. 43, causing great damage to plaintiff’s engine and several of tbe cars composing tbe train. Tbe testimony showed tbat tbe track of defendant road towards tbe north was practically straight for a mile, affording ample opportunity for employees of defendant operating its train to observe and note the present placing of plaintiff’s train and tbat 43 approached tbe station at about twenty to twenty-five miles per hour.

Tbe evidence of plaintiff tended to show tbat tbe time limit of its permit bad not expired at tbe time of tbe collision, and there was evidence on part of defendant tending to show that same occurred after tbe time limit bad expired.

Upon, this statement, sufficient to present the case in its general aspects, we are of opinion that the cause should be tried and determined on the three issues of negligence on part of defendant, contributory negligence on part of plaintiff, and, third, the issue as to damages in case the answer on the first and second require that the third issue should be determined. If the collision occurred before the time limit expired, the first issue should be answered in favor of plaintiff; and if before such time plaintiff was negligent in failing to get its train out of the way-under the rules of law properly- applicable, the second issue should be answered for defendant, this to be determined on the entire facts relevant to the inquiry, including-the fact that it was there by permit from defendant company and with the purpose at the time of backing its train onto a siding.

If the collision occurred after the time limit expired, then, in view of all the facts in evidence, the obligation on the part of plaintiff’s agents and employees to keep vigilant and continuous outlook and remove the train in time to avoid a collision was so insistent that a breach of duty in this respect would amount as a conclusion of law to. contributory negligence continuing to the time of impact, and no recovery by .plaintiff should be allowed.

In this view there is no place for the doctrine of the last clear chance, for all the controlling facts as to defendant’s liability may and in this case should be determined on the first and second issues.

In the charge on the first issue and on the third as to the existence of the last clear chance, and on the fifth issue, that as to the responsibility of plaintiff, the court in various ways submitted the question of whether the remaining on the track by plaintiff’s train after the time limit had expired was or was not the proximate cause of the injury, and in our view and considering the difficulty in obtaining the permit to enter on the track and the imminence of the arrival of No. 43, and other facts relevant to the inquiry, we think this was prejudicial error which entitles defendant to a new trial. Whether the collision occurred before or after the time limit expired, the defendant may not be allowed to recover, for the entry on the track was by its permission, and on all tbe evidence, i£ tbe placing o£ plaintiff’s train constituted an obstruction on tbe main line in tbe direction defendant’s passenger train was moving, tbe attendant circumstances showed that tbe defendant’s employees bad ample opportunity to bave observed this and stopped its train in time to bave avoided a collision. Tbe view presented is in accord witb tbe general principles applicable, as shown' in Exum v. R. R., 154 N. C., 418; Edge v. R. R., 153 N. C., 212, and other cases.

For tbe error indicated, we are of opinion that a new trial should be awarded.

New trial.  