1. Carriers — Railroads — Negligence — Evidence — Grade Crossings — Signals.
The running of a railroad train at an excessive speed across a public road grade crossing of a town without timely warning by blowing the whistle of the locomotive, is evidence of its actionable negligence in an action by a passenger in an automobile against the company, or by his administrator for his wrongful death.
2. Negligence — Automobile Passenger.
The negligence of the driver of an automobile is not attributable to a mere passenger who is not engaged with him in a common enterprise, and who has no control over the operation of the automobile.
3. Same — Carriers — Railroads — Grade Crossings — Evidence — Proximate Cause — Questions for Jury.
When a passenger in an automobile is killed in a collision at a public highway grade crossing of a railroad track in a town, and the negligence of the driver of the automobile is not attributable to him, and there is evidence of negligence on the part of the driver and on the part of the engineer and crew on the railroad company's train, in an action against the railroad company for the wrongful death of the passenger, the issue of the defendant's negligence is for the jury upon the question of the proximate cause.
4. Negligence — Concurrent Negligence — Proximate Cause.
In an action against a railroad company for damages for the negligent killing of the plaintiff's intestate, while the defendant is not liable if the independent negligence of another is the sole, efficient, and proximate cause, the defendant is liable if its negligence contributed as the proximate cause to the injury complained of.
BROGDEN, J.
The crossing in controversy was a grade crossing, and, according to the evidence, one that was much used by the public. It was therefore the duty of the defendant to use due care in giving a timely warning of the approach of its train either by sounding the whistle or ringing the bell at the usual and proper place in order that those approaching or using the crossing could be apprised that the train was at hand. It is established law that failure to perform this duty constitutes negligence. Edwards v. R. R., 132 N.C. 100; Bagwell v. R. R., 167 N.C. 611; Goff v. R. R., 179 N.C. 216; Pusey v. R. R., 181 N.C. 137; Williams v. R. R., 187 N.C. 348.
There was sufficient evidence to be submitted to the jury as to the failure of defendant to give reasonable and timely notice of the approach of the train. The principle of law involved is thus stated in Perry v. R. R., 180 N.C. 290. "It was the duty of the defendant to give reasonable and timely notice of the approach of its train to a public crossing by ringing the bell or blowing the whistle, or by doing both when peculiar conditions demanded it; that a failure to do so is negligence, and that the evidence of witnesses nearby who testify that they do not hear the ringing of the bell or the blowing of the whistle, is evidence that no such signal was given," (citing Goff v. R. R., 179 N.C. 219).
The evidence of the defendant tends to show that Wakefield, the driver of said car, was guilty of gross negligence, but this negligence would not be imputed to plaintiff's intestate, who was a mere guest or passenger in the car at the time of the collision, because there is no evidence that plaintiff's intestate was engaged in a joint enterprise with the driver, Wakefield, or that he had any control whatever of the car, or that he failed to perform any duty imposed by law upon him as a guest or gratuitous passenger. Therefore, negligence on the part of the driver will not, ordinarily, be imputed to a guest or occupant of an automobile unless such guest or occupant is the owner of the car or has some kind of control of the driver. Bagwell v. R. R., 167 N.C. 611; White v. Realty Co., 182 N.C. 536; Williams v. R. R., 187 N.C. 348; Albritton v. Hill, 190 N.C. 429. Of course, if the negligence of the driver is the sole, only, proximate cause of the injury, the injured party could not recover. This rule is not based upon the idea of contributory negligence on the part of the injured party but rather upon the idea that the party causing the injury was not guilty of any negligence, which was the proximate cause thereof. However, in the present case, there was evidence tending to show negligence on the part of the defendant in failing to give reasonable signals as required by law. There was also evidence that the driver of the car was guilty of negligence. Under this aspect of the case the doctrine of concurrent negligence applies, as stated, by Stacy, J., in White v. Realty Co., 182 N.C. 536, as follows: "But if any degree, however small, of the causal negligence, or that without which the injury would not have occurred, be attributable to the defendant, then the plaintiff, in the absence of any contributory negligence on his part, would be entitled to recover; because the defendant cannot be excused from liability unless the total causal negligence, or proximate cause, be attributable to another or others. When two efficient, proximate causes contribute to an injury, if defendant's negligent act brought about one of such causes, he is liable." Wood v. Public Service Corp., 174 N.C. 697; Hinnant v. Power Co., 187 N.C. 288; Albritton v. Hill, 190 N.C. 429.
It is too well settled to require debate that the question of the proximate cause of an injury is for the jury. Newton v. Texas Co., 180 N.C. 561; Albritton v. Hill, 190 N.C. 429.
The jury, acting upon competent evidence and under an able and exact charge, as to the principles of law involved, has determined the facts in controversy in favor of the plaintiff, and the judgment rendered upon the verdict must be affirmed.
No error.