after stating the facts: When a person in charge of a wagon and team approaches a public crossing, at which he proposes to pass over a railway track, it is his duty, even though no train is expected at that hour, to look and listen and take every precaution that prudence would suggest to avoid a collision. Wood’s R. L., p. 1302.
According to the undisputed testimony, the witness who was in charge of the wagon went upon the track, in person, without venturing with the team, and, looking in the direction from which the train that injured the engine subsequently came, saw the line clear for more than a thousand yards to a curve (which was, in fact, afterwards ascertained by measurement to be one thousand and seventy yards distant from the crossing).
The defendant company contends, not without reason, that if, in the view of the testimony most unfavorable to the plaintiff, his negligence did contribute, or might have contributed, concurrently with that of the defendant, to cause the injury, the Court should have given the jury such specific instruction as was necessary to apply the law to that particular phase of the testimony, if requested to do so by the cou nsel of the company. This principle, it is insisted, can be applied, if we suppose — considering some portions of *187the testimony offered on both sides to be true — that the plaintiff’s agent, after seeing that there was no train as near as the curve, drove his team upon the crossing without looking at his watch, when a glance at it would have notified him that it was about the time when the. train usually passed, and when he knew, or, by examination, might have ascertained the condition of the crossing, and especially that, in order to draw the wagon containing the engine across the track, the wheels must overcome a perpendicular rise of nine inches. The company admits in its answer the duty of keeping ihe crossing in good condition, and, upon the hypothesis which we are now assuming to be true, was guilty of negligence in failing to repair it. Wood’s R. L., §420; Gray v. Railroad Co., 36 Iowa, 112. The defendant company will not be allowed to excuse the negligent running of its trains if its engineer was shown to be in fault in destroying an engine detained on the crossing on account .of its own omission to make the public highway passable. The plaintiff’s agent was not wanting in ordinary care because he did not inspect the crossing to see whether the company had discharged its duty before venturing upon it, nor is the single circumstance that he failed to look at his watch sufficient to show culpable imprudence, because he could have passed over safely if the crossing had been in good condition. Where a teamster crossed a bridge that he actually knew to be somewhat unsafe, but which the county officers had not closed or warned people not to pass, it "was held by the Supreme Court of Pennsylvania that he was not in fault and could recover for injuries sustained thereby. Humphrey v. Armstrong, 56 Penn., 204; Alger v. Lowell, 3 Allen, 402; Robinson v. Proche, 5 Cal, 460.
Wood, in his work on Railway Law (§ 323, p. 1314), says: “If a person, in crossing a railroad track, in the exercise of due care as to approaching trains, through no fault of his, gets the tvheels of his vehicle caught in the'track so that he cannot *188 extricate theta in season to avoid injury from ail approaching train, he is not chargeable vith such 'negligence as will, predwle a rccoveiy for injury to his team, if he properly endeavors lo cause the 'train to be stopped.” Railroads Co. v. Dunn, 56 Penn. St., 280; Milwaukee Railroad Co. v. Hunter, 11 Wis., 160.
The engineer testifies that lie saw Harper running up the track waving his handkerchief as soon as he turned the curve (one thousand and seventy yards from the crossing), and the fireman states that he called his attention to ihe obstruction six hundred yards from the crossing. This is in accord with Harper’s statement that ho ran up the road, making the signal to stop, so soon as he discovered that the team w7as stalled.
Instead of leaving the question of contributory negligence to ihe jury at all, his Honor might have told them that the plaintiff had not, in any aspect of the evidence, contributed, bv his own want of care, to cause the injury sustained. As the erroneous instruction was favorable to the defendant, it is unnecessary to analyze or discuss so much of the charge as relates to contributory negligence
There may bemutu-d negligence, and still one party may maintain an action against the other. When a man negligently lies down and falls asleep in the middle of the public road, and another, who sees him, failing to exercise ordinary care, drives over and injures him, an action will lie for the injury. Kerwocker v. Railroad Co, 3 Ohio St., 172; Davies v. Mann, 10 Mees & W., 545 It is upon this principle that his Honor acted in instructing the jury. The authorities fully sustained him in the position, that even if the plaintiff did not exercise due caution in venturing upon the track under all (he circumstances, still the defendant was liable to -answer in damages for the injury sustained, if by the exercise of ordinary care on ihe part of its servants it might have been prevented. Gunter v. Wicker, 85 N. C., 310; Troy v. Railroad Co., 99 N. C., 298; Farmer v. Railroad Co., 88 N. C., *189564; Shearer & Redfield on Neg., sec. 36 ; Cooley on Toils, 679; Blaine v. C. & O. Railroad Co., 9 W. Va., 252; B. & O. Railroad Co. v. State, 33 Md., 542.
It is the duty of an engineer, when running his engine, fo keep a constant “ lookout for obstructions, and when an obstruction is discerned, no matter when or where, he should promptly resort to all means within his power, known to skillful engine-drivers, to avert the threatened injury or danger.” Woods’ R. L , sec. 418, p. 1548; S. & N. Ala. Railroad Co v. Williams, 65 Ala., 74; Ibid v. Jones, 66 Ala., 507. If the engineer, so soon as he discovered that the wagon was detained upon the track and could not, for the time, get out of the way, or so soon as with 'proper care and, watchfulness he would have had reason, to think such ivas its condition, had 'used every means and appliance in his power to stop the train, the defendant would not have been liable. But the Judge omitted to tell the jury that ir. was negligence on the part of the defendant, if the engineer could have seen, by watchfulness, though he did not in fact see, that the road was obstructed in time to stop his train before reaching the crossing. Carlton v. Railroad Co., 104 N. C., 365; Wilson v. Railroad Co., 90 N. C., 69; Snowden v. Railroad Co., 95 N. C., 93. The defendant could not complain of this error.
It is true that, ordinarily, an engineer has a right to assume that one who has time will get out of the way, but he is not warranted in acting upon this assumption after he “ has reason to believe that lie is laboring under some disability, or that he does not hear or comprehend the, signals.” French v. Phila. Railroad Co., 39 Md., 574. Counsel for the defendant, in his brief, states that there was testimony tending to show that the curve was only two hundred yards from the crossing; but we cannot look beyond the case on appeal, and there it appears that the witnesses estimated the distance at from six hundred to twelve hundred yards, two swearing that they measured, and one that he stepped it, *190and made it over one thousand yards. The engineer testified that he did not know whether it was twelve hundred or two hundred yards That was not evidence to show that the distance did not exceed the shorter distance mentioned by him. The engineer testified that he saw the obstruction on the track as soon as lie turned the curve, and at the same time saw the man running up the track making the signal, and that he could have stopped his engine by the use of the appliances at his command within three hundred and fifty yards. It would seem that he had sufficient reason to believe that those in charge of the team had encountered some difficulty, when he saw it on the track, and the witness Harper running and waving his handkerchief. But if that were not so, the fireman testified that he called the attention of the engineer to the obstruction when he was six hundred yards from the wagon, and when, according to his own estimate, he might have stopped his train two hundred and fifty yards short of the crossing. But he went on, according to his own testimony, within some three hundred or three hundred and fifty yards, but, as the result proved, too far to save the plaintiff harmless.
Applying the law to this state of facts, it would seem that the plaintiff might have complained of his Honor’s charge as to the liability of the defendant by reason of its own negligence, but, like the instruction relating to contributory negligence, it was more than fair to the defendant. The defendant company has failed to point out any error that entitles it to a new trial. There is no error.