The evidence for the plaintiff, which has been accepted, establishes the negligence of the defendant as the proximate cause of the death of the plaintiff’s intestate. Purnell v. R. R., 122 N. C., 832; Ray v. R. R., 141 N. C., 84; Hill v. R. R., 166 N. C., 596.
The question has been recently discussed in a number of cases.
The Court says, in Ray v. R. R.: “It was a negligent act to back a train onto a railroad yard where persons, passengers and others were accustomed to stand or move about, either as of right or in the discharge of some duty, or by permission of the company, evidenced by established usage, without warning of any kind and without having some one in a position to observe the condition of the track and signal the engineer or caution others in case of impending peril.” And in Hill v. R. R., quoting from Lloyd v. R. R., 118 N. C., 1010: “It was negligence on the part of the defendant to run its engine, after night, rear in front, without such *259a light, for two reasons — first, because by its aid the intestate might possibly have been seen in time to stop the train and avert the accident; and, secondly, because every person who used the track as a footway, under the implied license of the defendant, had reasonable ground to expect that such care would be exercised and to feel secure in acting upon that supposition.”
It is also settled in this State that the violation of an ordinance or statute is negligence, and not mere evidence of negligence. Ledbetter v. English, 166 N. C., 125; McNeill v. R. R., 167 N. C., 396.
The judgment of nonsuit could not, therefore, be granted except on the ground of contributory negligence, in that the intestate of the plaintiff entered on the track without looking and listening, and this could not be declared as matter of law, as will appear in the discussion of the charge relating to the second issue.
The only debatable question raised by the appeal is as to the charge on contributory negligence.
The first part of this charge was too favorable to the defendant, because it deals with the intestate as a stranger on the premises by permission, and not as a passenger leaving the premises of the defendant after alighting from its train.
In Warner v. R. R., 168 U. S., 339, the Court said: “The duty owing by a' railroad company to a passenger actually or constructively in its care is of such a character that the rules of law regulating the conduct of a traveler upon the highway when about to cross, and the trespasser who ventures upon the tracks of a railroad company, are not a proper criterion by which to determine whether or not a passenger who sustains injury in going upon the tracks of the railroad was guilty of contributory negligence. A railroad company owes to one standing towards it in the relation of a passenger a different and higher degree of care from that which is due to mere trespassers or strangers, and it is conversely equally true that the passenger, under given conditions, had a right to rely upon the exercise by the road of care; and the question of whether or not he is negligent, under all circumstances, must be determined on due consideration of the obligations of both the company and the passengers
The cases bearing on the question are collected in the note to Besecker v. R. R., 14 Anno. Cases, 24, from which we quote the following: “The duty of a railroad to a passenger is of such a character that the rules of law regulating the conduct of a traveler upon the highway when about to cross railroad tracks and of a trespasser who ventures upon such tracks are not proper criteria by which to determine whether a passenger who sustains injury in going upon the tracks for the purpose *260of passing between a train and a station in tbe manner designated by tbe railroad company is guilty of contributory negligence.
“The failure of a passenger to look or listen, under sucb circumstances, may or may not be negligence, according to tbe peculiar facts of the case. Chesapeake, etc., R. Co. v. King, 99 Fed., 251; 40 C. C. A., 432; 49 L. R. A., 102. But tbe mere fact of crossing a track upon the implied invitation of tbe company, for tbe purpose of boarding or leaving a train, without looking or listening, is not necessarily contributory negligence as a matter of law.”
Tbe charge was also objectionable on tbe part of tbe plaintiff, because it ignored tbe evidence tending to prove that tbe intestate of tbe plaintiff was deaf; that there was neither man nor light on tbe rear of tbe train; that tbe electric light did not aid him; that it was dark where be was, and that if be bad looked and listened be would not have seen nor beard anything that would have afforded him protection.
Tbe Court says, in Russell v. R. R., 118 N. C., 1109: “Where tbe plaintiff exposes himself to danger,-if be is induced to incur tbe risk because of tbe failure to sound tbe whistle or ring tbe bell at tbe usual place, tbe omission to listen and look is deemed excusable, or not culpable, because be is misled by tbe conduct of tbe company. Alexander v. R. R., 112 N. C., 734.”
Did tbe modification of this charge by tbe part excepted to deprive tbe defendant of its defense of contributory negligence, and was it prejudicial to tbe defendant?
When tbe two paragraphs of tbe charge are considered together, they amount to an instruction that, although tbe defendant did not look and listen before entering on tbe track, yet, if tbe defendant was running its train in excess of four miles an hour, in violation of tbe ordinance, and this was tbe proximate cause of bis death, tbe jury should answer tbe second issue “No.”
This charge cannot be properly interpreted without determining tbe meaning of proximate cause and incorporating it into tbe charge.
Proximity of time and space is no part of the definition, and it “must be understood to be that which, in natural and continuous sequence, unbroken by any new or independent cause, produces that event, and without which sucb event would not have occurred.” Sherman and Redfield on Negligence, sec. 26; Hardy v. R. R., 160 N. C., 119; Ward v. R. R., 161 N. C., 184.
Tbe charge, therefore, considered in tbe light of tbe accepted definition of proximate cause, is equivalent to saying to tbe jury that, although tbe plaintiff did not look and listen before entering upon tbe track, yet, if tbe defendant was running its train in excess of four miles an hour, in violation of tbe ordinance, and that if tbe defendant bad not been *261running its train, at that speed, that tbe plaintiff’s intestate would not bave been killed, that then the plaintiff would not be guilty of negligence, which was the proximate cause of his death; and if the jury so found, they should answer the issue “No,” and as thus understood, there was no error in the charge.
"Was there evidence supporting such a finding by the jury?
One witness for the plaintiff, who was shown to be an expert, testified that upon certain findings by the jury, of which there was evidence, that the train was running from six to eight miles an hour. The engineer of the defendant testified that the train was running about four miles an hour, and that when he received the wash-out signal, which was before the plaintiff was struck, that he stopped the train within three or four feet.
There was also evidence that the body of the plaintiff was dragged, after it was struck, 15 feet.
This furnishes some evidence that the train was running in excess of the speed limit, and if so, the jury might well have found that if it had been running at four miles an hour, that the plaintiff’s intestate would have passed over the track, a distance of 3 or 4 feet, before the train reached him, and would therefore have escaped injury, and that the rate of speed was the cause, without which the injury would not have happened.
We are therefore of opinion that there was no error in the charge.
No error.
Hoke, J., concurs in result.