The essential facts in this case are practically the same as they were when the ease was before this Court at its September Term, 1898, reported in 123 N. C., 604. Our opinion in that case settles many of the exceptions now brought up, and especially those relating to the sufficiency of evidence and the submission of issues. There are 37 exceptions by the defendant, one being numbered 13-J, and it is manifestly impracticable to discuss each one separately. There was sufficient evidence on all the issues to go to the jury, and the issues have been too often approved by this Court in similar cases to be any longer subject to serious question. Their form was substantially suggested by this Court in Denmark v. Railroad, 107 N. C., 185, 189; and, in fact, they are the natural outgrowth of the doctrine of the last clear chance.
• This doctrine, first distinctly announced in Davies v. Mann, 10 M. & W., 545 (Exc.), was adopted in this State in Gunter *106 v. Wicker, 85 N. C., 310, and has now become the settled ride of this Court. McLamb v. Railroad, 122 N. C., 862, 883. See also Inland Coasting Co. v. Tolson, 139 U. S., 551; Fulp v. Railroad, 120 N. C., 525.
As the plaintiff admitted contributory negligence, the third issue, which the defendant sought to have withdrawn, was not only proper, but necessary.
It is as follows: “3. Notwithstanding such negligence on the part of the said intestate, could the defendant, by the exercise of due care and prudence, have prevented the killing ?”
We see no error in, the admission of Smith’s testimony, which was substantially corroborated by the engineer Sanford, a witness for the defendant. The witness Cox testifies that he had made certain experiments to see how far down the track a man could be seen. This was objected to by the defendant, but we think was competent as presented to us in the'record. State v. Graham, 74 N. C., 646.
We see no error in the failure of the Court to instruct the jury that the omission of the defendant to introduce one Massey as a witness should not be considered in rendering their verdict. Fowler v. Insurance Co., 74 N. C., 89; Goodman v. Sapp, 102 N. C., 477; Hudson v. Jordan, 108 N. C., 10; State v. Jones, 77 N. C., 520.
The authorities cited by the defendant as to what is a public road have no bearing, as there is no question of title involved. The sole question is one of fact as to what extent the path is actually used by the public as tending to affect the degree of care required of the defendant under existing circumstances.
The defendant contends that the plaintiff should not recover because it says there is evidence tending to show that the deceased walked into the train instead of the train running *107into the deceased. This involves a question of fact which the jury found it difficult to believe. We think the charge as a whole fairly presented the contentions of the defendant and correctly stated the law applying thereto. The Court is not required to charge in ipsissimis verbis of counsel even when the prayer is correct. Norton v. Railroad, 122 N. C., 910, 933.
The other exceptions of the defendant are in our opinion equally untenable, and therefore the judgment is
EaiRoloth, C. J., dissents.