
    PHARR v. SOUTHERN RAILWAY CO.
    (Filed December 15, 1903.)
    1. PLEADINGS — Admissions—Evidence—Carriers.
    In this action against a railroad company to recover for personal injuries, the answer introduced as evidence does not admit that the decedent could not see the approaching train and was unaware of its approach.
    2. NEGLIGENCE — Contributory Negligence — Evidence—Sufficiency of Evidence — Railroads.
    The evidence in this case is not sufficient to be submitted to the jury as to the negligence of the defendant in killing the decedent, and it shows that the decedent was negligent in failing to look and listen before stepping on the track of the defendant.
    ActioN by H. N. Pharr, administrator of G-. D. Sinclair, against the Southern Railway Company, heard by Judge W. H. Neal and a jury, at July Term, 1903, of the Superior Court of Mecklenburg County. From a judgment for the defendant the plaintiff appealed.
    
      Clarkson & Buis, for the plaintiff.
    
      George F. Bason and A. B. Andrews, Jr., for the defendant.
   MONTGOMERY, J.

It has been decided by this Court over and over ag'ain that a railroad company, through its locomotive engineer on a moving train during day-time, owes no duty to give signals to a pedestrian on its track who is apparently in possession of his faculties, and in the absence of any reason to suppose that he is not. And the reason is that the engineer may reasonably believe, and act upon the belief, that the walker on the track will get off in time to prevent being stricken. McAdoo v. Railroad, 105 N. C., 140; Meredith v. Railroad, 108 N. C., 616; Norwood v. Railroad, 111 N. C., 236; High v Railroad, 112 N. C., 385; Neal v. Railroad, 126 N. C., 634, 49 L. R. A., 684; Bessent v. Railroad, 132 N. C., 934. In analogy to tbe decisions in tbe above cases tbe rule bas been laid down that where a person is seen by tbe engineer walking on a foot-path alongside of the track and out of danger, that it may and will be presumed by tbe engineer that be will remain on tbe side-path or step' farther from tbe track when be sees tbe train. Matthews v. Railroad, 117 N. C., 640; Markham v. Railroad, 119 N. C., 715.

In tbe ease before us the plaintiff’s intestate, at the time when be was killed by one of the defendant’s engines, was walking, with a bag or sack on bis back, between tbe main track and a side track, tbe space intervening between tbe tracks being eight feet. People were accustomed to walk there, and there was room enough for that purpose between trains of cars on both tracks at tbe same time. As be was passing an engine at rest but exhausting steam on tbe side track, either to avoid the escaping steam or to cross tbe track to reach Eifth street, be stepped upon the main track and was immediately stricken by an engine hauling a train of cars on the main track and moving in tbe same direction that tbe plaintiff’s intestate was going. Tbe evidence of tbe plaintiff was to tbe effect that there were no signals of bell or whistle. Tbe plaintiff further introduced tbe fifth allegation of the complaint and the fifth paragraph of tbe answer. It was alleged in that part of tbe complaint that be (plaintiff) bad a heavy sack on bis back, which bent him over and compelled him to look downward; that opposite to where be was walking on tbe switch track was an engine blowing off steam, making a great noise and making it impossible almost to see and almost impossible to bear; that on account of tbe noise of tbe engine blowing off steam and tbe cloud of steam in which plaintiff’s intestate was enveloped, be was unaware of the approach of the train and unable to see same on the main-line track; that at all times while the engine on the main line was approaching plaintiff’s intestate within a distance of two' hundred yards or more the engineer in charge of the defendant’s engine, who was defendant’s employee, saw or in the exercise of due care could have seen plaintiff’s intestate was in a perilous position, and the said engineer in the exercise of due care could have prevented and avoided the killing of plaintiff’s intestate.”

The defendant, in the fifth paragraph of its answer, denied “that at all times while the engine on the main line was approaching plaintiff’s intestate at the distance of two hundred yards or more the engineer in charge of the defendant’s engine saw or in the exercise of due care could have seen that plaintiff’s intestate was in a perilous position,, and that said engineer, by exercise of due care, could have prevented and avoided killing plaintiff’s intestate.” In the argument here the plaintiff’s counsel contended that the defendant, by the wording of the fifth paragraph of his answer, admitted that the plaintiff could not see the engineer on the approaching train or hear the approach of the train because of his position amidst the escaping steam and noise of the engine on the side track, and that the plaintiff was really unaware of the approach of the train and unable to see it. But the allegation of the complaint is not that he could not see or hear, but that owing to the noise and the steam it was mado impossible almost to see and almost impossible to hear. Neither is it alleged in the complaint that before he walked into the escaping steam or before he stepped upon the main track he looked or listened. Nor can it be surmised that the plaintiff intended in his complaint to allege that the plaintiff, before he stepped into the escaping steam or upon the main track, could not see or hear the coming train. The answer in no wise admitted the negligence of the defendant, but denied it. The plaintiff introduced only one witness as to the killing — W. L. Wentz. That witness testified, in answer to a question put to him by the plaintiff’s counsel as to whether the engine on the side track was “making considerable noise/’ “just ordinary fuss.” “He stepped on the end of the cross-ties to shun that engine on the side track — the noise.” On cross-examination-he was asked: “If there was any steam being made by that engine standing still on the side track, was that in the way of the man ?” He said: “I don’t know whether there was any smoke at all, but the old man stepped up there, as I understood, to get out of the way of the engine.” Question: “That is just supposition on your part?” Answer: “It was making a noise — I am satisfied about that.” Q. “Whatever steam or smoke there was, it was south of it?” Ans. “Tes, between him and the depot” The engine that struck the intestate was moving southward and the stationary engine on the side track was heading toward the north. Upon an inquiry by the Court the witness said that at the time the plaintiff stepped upon the main track he was ten or fifteen feet up the road from the stationary engine. The witness further said: “There was nothing to prevent him from seeing the engineer or the engineer from seeing him.” Taking the alleged sections of the complaint and answér and the evidence of Wentz, we find not even a scintilla of evidence that the defendant’s engineer was negligent. But even if the defendant’s engineer had been negligent in not giving a warning whistle or signal, the plaintiff is not entitled to recover, because his own negligence and carelessness were the immediate cause of the injury. In Matthews v. Railroad, supra, the Court said: “It is suggested that it is the engineer’s duty to sound his whistle and give the plaintiff notice of the approaching train. If we assume that he should have done so when a person was walking ahead on the main track, we see no reason, and presumably he did not, why he should sound the whistle when the plaintiff was walking on the sidewalk of the track, by which is meant the foot-path at the end of the cross-ties, because he was then out of danger, and the engineer reasonably assumed that he would stay there and step further off from the track when he saw the train. Eor some singular and peculiar reason the plaintiff moved into a dangerous position at a critical moment, an event which the engineer could not foresee or anticipate. If the defendant was negligent in not giving a signal sound, the act of the plaintiff was much greater carelessness and was the immediate cause of the injury, and he cannot be excused for such disregard of his personal safety.” In Syme v. Railroad, 113 N. C., 558, the Court said: “We cannot yield to the ingenious suggestion of the able counsel for the plaintiff that the engineer must have seen the long freight train (on the neighboring track of another railroad company) and known the fact that the engine was ‘exhausting heavily,’ so as to render the intestate so insensible to the approach of the other train as if he had been deaf, and that therefore the defendant’s engineer was negligent in not attempting earlier to stop' the train. But it was the duty of the intestate to look as well as listen, under the circumstances, and he was negligent if he failed to use his eyes as well as his ears. McAdoo’s case, supra. On the other hand, the engineer was justified in assuming that the intestate had looked, had notice of his approach, and would clear the track in ample time to save himself from harm.” It was alleged in the complaint, and denied in the answer, that the engine was running at a greater rate of speed than that permitted by the city ordinance. There was no evidence offered on that question, and it was admitted on the argument here that such was not the case. If that point had been before us it would not have relieved the plaintiff’s negligence, for in Neal v. Railroad, 126 N. C., 634, the Court said: “If the plaintiff’s intestate was walking upon the defendant’s road in open daylight, on a straight piece of road, where he could have seen the defendant’s train for 150 yards, and was run over and injured, he was guilty of negligence. And although the defendant may have also been guilty of negligence in running its train at a greater rate of speed than was allowed by the town ordinance, or in not ringing its bell as required by said ordinance, and in not keeping a lookout by its engineer as it should have done, yet the injury would be attributed to the negligence of the plaintiff’s intestate.” To the same effect are Lea v. Railroad, 129 N. C., 459, and Bessent v. Railroad, 132 N. C., 934. The doctrine of the last clear chance was not involved here, because the intestate was stricken immediately upon stepping upon the track in front of the engine.

We therefore concur with his Honor in the opinion that the plaintiff was not entitled to recover, because there was no evidence fit to be submitted to the jury tending to show negligence on the part of the defendant’s engineer, and also because by the undisputed facts, considered in any phase presented by them, the intestate was negligent in failing to look and listen before he left the safe path between the tracks and stepped upon the main track, while the engineer was not negligent in acting on the belief that the intestate would stay where-he was.

Affirmed.  