The right of the plaintiff to maintain this action must be determined by the conduct of the parties after the time the horse began to back, and if the evidence presents a phase from which the jury could find that the engineer, by keeping a lookout, could by the exercise of ordinary care have seen that a collision was imminent, in time to stop his train and avoid it, then it was his duty to do so; and if the jury should so find, the plaintiff could recover, notwithstanding the failure of the driver to look and listen at the crossing.
This is clearly stated by Justice Hoke in Snipes v. Manufacturing Co., 152 N. C., 46.
After discussing the duty of the engineer to keep a lookout, and to stop and avoid injury when he can do so by the exercise of ordinary care, he says: “Ordinarily, cases calling for application of the doctrine indicated arise when the injured person was down on the track, apparently unconscious or helpless, but such extreme conditions are not at all essential, and the ruling should prevail whenever an engineer operating a railroad train does or, in proper performance of his duty, should observe that a collision is not improbable, and that a person is in such a position of peril that ordinary effort on his part will not likely avail to save him from injury; and the authorities are also to the effect that an engineer in such circumstances should resolve doubts in favor of the safer course.”
The quotation speaks in terms of persons, but the principle also applies to injury to property. *227Under tbis rule, wbat is tbe evidence, and what facts could the jury find from it, giving it a construction most favorable to the plaintiff, which we must do on a motion for nonsuit?
The evidence of the plaintiff, if believed, shows that the horse was twenty-five or twenty-eight steps beyond the crossing when he began to back; that he was backing towards the track; that he continued to back without stopping until there was a collision between the wagon and the train; that the driver was trying to stop the horse and could -not do so; that the horse and wagon and driver were in full view of the engineer; that the engineer called to the driver and told him to stop backing into the train, when about fifteen or twenty yards from him; that at the time the horse began to back the engine was seventy-five yards from the crossing, and that it could have been stopped in eight feet.
If so, there was evidence that the engineer could, by the exercise of ordinary care, have seen .that a collision was imminent, in time to stop the engine and avoid the injury.
There was evidence on the part of the defendant which, if accepted by the jury, would exonerate it.
The engineer testified that he saw the horse backing, and reduced the speed of his engine; that when near the horse and wagon, the horse stopped and appeared to be under control; that he then increased his speed, and as he was passing the crossing the horse suddenly reared and backed into the train.
If the jury should find this evidence to be true, the defendant would not be liable.
The case of Kearns v. R. R., 139 N. C., 471, is not in conflict with these views. In that case the train had passed the crossing, when the horse began to back, and there was no evidence, in the opinion of the Court, of anything the engineer could have done to avoid the injury.
There is some evidence of negligence on the part of the driver, in charge of the horse and wagon, at the time of the injury, but it is not of such character that we can declare, as matter of law, that it amounts to contributory negligence.
It was his duty to look and listen as he approached the crossing, and ordinarily a failure to do so will bar a recovery for an *228injury on tbe crossing; but in this case the crossing was passed in safety, and there is no causal connection between this failure of duty and the injury. If after the horse began to back, the driver was negligent and this negligence continued to the time of the injury and contributed to it, the plaintiff could not recover, but in passing upon this question the jury would have the right to consider his surroundings, and the law would require no more of him than to act as a man of ordinary prudence would have done under similar circumstances.
The question is not what a prudent man would do now in the light of subsequent events, but what would a man of ordinary prudence have done in the situation in which the driver was placed.
In our opinion, there was some evidence for the consideration of the jury, and a new trial is ordered.
New trial.