Parker v. Seaboard Air Line Railway, 181 N.C. 95 (1921)

March 16, 1921 · Supreme Court of North Carolina

181 N.C. 95

JENNIE S. PARKER v. SEABOARD AIR LINE RAILWAY et al.

(Filed 16 March, 1921.)

1. Railroads — Federal Control — Federal Agent — Director General — Parties — Statutes.

Under the Federal statute, actions at law that would lie against a common carrier before the United States assumed control of them would also lie after the act restoring them to private control as to injuries accruing during Government control against the agent designated by the President, the damages recovered to be paid out of the revolving fund created by the act, and the Director General and the railroads are both proper parties to the action.

2. Railroads — Crossings—Signals—Warnings—Negligence.

Evidence that the plaintiff was injured while attempting to cross the track of the defendant railroad company about a half hour after sunset on a cloudy evening, and in a drizzling rain; that the place of the injury was a most frequented crossing in a town, and that the defendant’s train was running backward without light on its advancing end, and without signal or other warning, or a flagman properly placed to give any, is sufficient to take the case to the jury upon the issue of defendant’s actionable negligence.

3. Railroads — Crossings—Automobiles—Negligence— Evidence— Signals —Warnings.

The plaintiff was injured while a passenger in an automobile endeavoring to cross defendant railroad company’s track on a dark evening about sunset, being struck by defendant’s locomotive: Held, under the evidence in this case it was for the jury to determine whether the defendant was negligent.

4. Same — Lights.

It is negligence for a railroad company’s employees in charge to back its engine over a frequently used street crossing of a town after dusk without a light or other signals or warning, or without placing some one to warn pedestrians of the approach of the train.

5. Railroads — Crossings—Negligence—Evidence—Watchmen.

Where there is evidence tending to show negligence on the part of the railroad company’s employee to give timely notice at á frequented crossing of a town of the approach of the defendant’s train, which, with the other evidence, was sufficient to be submitted to the jury on the issue of defendant’s negligence; it is also competent to show that this employee had been ill for a long time, and was incompetent on account of his physical infirmities.

6. Evidence — Negligence—Contributory Negligence — Burden of Proof— Railroads.

The burden of proof is upon the defendant railroad company to show contributory negligence of a passenger in an automobile, struck while endeavoring to cross its track.

7. Automobiles — Passengers—Negligence—Railroads—Crossings.

Where a passenger has been injured while attempting to cross a railroad track in a collision with defendant’s train, the negligence of the driver may not be imputed to her without showing that she had control over him, or was in some way responsible for his negligent act.

8. Same — Contributory Negligence — Sudden Peril.

The plaintiff, in her action to recover damages for personal injuries alleged to be caused by the negligence of the defendant railroad company while crossing its track as a passenger in an automobile, is not barred upon the issue of contributory negligence if it is shown that the defendant’s negligence had placed her in sudden peril, and she, in acting upon the direction of defendant’s employee, had been compelled to do so suddenly and in an emergency that did not permit deliberation.

9. Damages — Personal Injury — Disfigurement—Humiliation.

Where there is evidence tending to show that the feme plaintiff had been physically disfigured on account of an injury negligently inflicted, entitling her to recover damages, testimony in her behalf, as to the measure of damages, that the injuries so received were embarrassing and humiliating to her is competent.

10. Evidence — Negligence—Cities and Towns — Ordinances.

The introduction of an ordinance of a town regulating the speed of trains backing upon the track, and properly proven, C. S., 2826, and requiring a signal light to be displayed, will not be regarded as error on appeal, when it is proven that upon the evidence in the case the jury has found, upon a trial, without legal error, the negligence of the defendant’s employees proximately caused the personal injury for which damages were sought in the action.

11. Automobiles — Negligence—Passengers—Railroads.

Where the plaintiff was a passenger in an automobile, and was injured by defendant’s railroad train while the automobile was crossing the track, and the plaintiff had no control over the actions of the driver of the car, the only duty imposed on plaintiff was to look and listen and to warn the driver of the approaching danger. The charge of the court in this case is approved.

Walker, J., dissenting; Stagy, J., concurring in the dissenting opinion.

Appeal from Lyon, J., at August Term, 1920, of Halifax.

This 'action is brought to recover $100,000 damages for personal injuries sustained in a crossing accident at Weldon, N. O., 10 February, 1920. Action was originally brought against Seaboard Air Line Rail•way Company and Walker D. Hines, Director-General of Railroads, but at the trial, by consent of counsel, John Barton Payne, Director General of Railroads, as agent designated by the President under the Transportation Act, was substituted as defendant in lieu of Walker D. Hines.

Plaintiff alleges negligence in that the defendant’s crossing watchman caused the driver of the automobile in which plaintiff was riding as a passenger to be stopped on the railroad track immediately in front of a train moving backward, in the dark, without a light, and without giving any signal, at a greatly frequented crossing in the town of Weldon, and in that the defendant failed to keep a proper lookout at the crossing, and failed to have a light at the rear of the train, as required by ordinance of the town of Weldon.

Plaintiff suffered the loss of both legs, one above and one below the knee, as the result of the accident.

Defendants based their defense upon three theories of the case: first, that there was no negligence on the part of the defendants; second, that the plaintiff was guilty of contributory negligence; and third, that the negligence of plaintiff’s sister, who was driving the car, was the proximate cause of plaintiff’s injury.

The jury returned a verdict for $45,000, and defendants appealed.

Travis é Travis, Ashby W. Dunn, and Daniel & Daniel for plaintiff.

George C. Green, B. O. Dunn, and Murray Allen for defendants.

ClaRK, C. J.

The plaintiff was riding as a passenger in an automobile, and on 10 February, 1920, at a greatly frequented crossing, a little after six p. m., the automobile was struck by the rear car of a backing train. It was a drizzly, rainy evening, and in the automobile, besides the driver, Mrs. Scott, there was the plaintiff seated on the front seat to the right of the driver, four young ladies, and Mrs. Scott’s son, when it reached the crossing in front of the Terminal Plotel in Weldon. At that point where the defendant’s track crosses the street, there are four tracks which converge until the street which is the First Street in the town (and on which the party was traveling) intersects Walnut Street. Beyond the crossing the railroad and First Street extended are almost parallel with each other, going west, the direction in which the automobile was moving. Before the intersection of said First Street and the railroad the angle is very acute and the railroad was to the right of the street getting nearer and nearer until the crossing is reached.

The rear of the car had the curtains in place, but on the front seat, where the plaintiff sat, there were no curtains, she being on the right and

tbe driver, Mrs. Scott,' to tbe left. Tbe evidence is tbat tbe car was being driven along tbe street slowly and came almost to a standstill, and tbe evidence is tbat botb Mrs. Scott and Mrs. Parker looked across tbe tracks and up and down tbe tracks, and botb testified tbat tbey were clear. As tbey drove along First Street going west towards tbe crossing, wbicb is just in front of tbe hotel, tbe plaintiff testified sbe saw some freight cars standing still at tbe right some 400 feet, near tbe Union Station. Just prior to tbe approach of tbe automobile to tbe crossing, a freight train of 19 cars bad come from tbe direction of Roanoke Rapids to Weldon, and bad pulled up across this crossing, and then bad gone on in tbe direction of tbe Union Station, and bad passed tbe switch between tbe crossing and tbe Union Station preparatory to backing into another track, and these cars were standing still, according to tbe plaintiff’s testimony, near tbe Union Station. As tbe automobile slowly approached tbe crossing these cars commenced backing towards tbe crossing slowly, without a light, or any one upon tbe advancing train to give warning.

Tbe evidence is tbat tbe conductor bad gone into tbe yard office to report tbe train, and sent out one of bis brakemen, who reached tbe train too late. Tbe engineer was at tbe other end of tbe 19 cars, down towards tbe river beyond Union Station, and knew nothing of tbe collision until be bad put bis train away. One of tbe brakemen, who was on tbe other side of tbe train at the switch, could not see tbe automobile, and tbe other brakeman was about half way tbe train and knew nothing about what was happening. According to tbe evidence, this was tbe situation as tbe automobile approached tbe crossing, wbicb it is testified was clear. Tbe defendant bad provided a flagman or crossing-master at tbat point. He bad formerly worked in tbe express office, but on account of his age and infirmities tbe company bad retired him, and tbe defendant bad then employed and stationed him at this point. Tbe evidence was tbat be was old and infirm, and tbat at this crossing more vehicles passed in a day than at any other crossing in tbe county.

Tbe evidence is that just as tbe automobile started across tbe track this agent appeared and cried, “Stop, stop, stop! Jump, jump, jump!” Mrs. Parker, who was on tbe right and nearest tbe car on tbe backing train, started to open tbe door and attempted to get out. One foot was on tbe ground and one on the running board when the forward car, moving slowly and noiselessly, struck her on tbe shoulder, knocked her down, ran over and crushed one of her legs just above tbe knee; and then tbe train, for some unexplained reason, moving back cut off tbe other leg between tbe ankle and tbe knee; her shoulder was also broken. Tbe automobile was struck just in rear of tbe front wheel and pushed around. The front door was battered and tbe front fender bent. One

of tbe young ladies was thrown over the bead of another who was trying to leave the ear.

The plaintiff was 44 years of age, and her normal weight before injury was 223 pounds. There was ■ .testimony as to her injuries and sufferings by physicians and others.

There is evidence that the sun set 10 February, 1920, at 5:36 p. m. This was not a scheduled train, and the crossing-master who gave the order to jump was not examined as a witness.

Both defendants assign as errors that the court refused to set the verdict aside because it was against the weight of the evidence, and because the damages were excessive, but these are matters that are not reviewable on appeal. Edwards v. Phifer, 120 N. C., 405, and citations in Anno. Ed.; Trust Co. v. Ellen, 163 N. C., 47; Boney v. R. R., 145 N. C., 248, in Anno. Ed., Cooke v. Hospital, 168 N. C., 256.

The defendant railroad company and the Director General, John Barton Payne, filed separate answers, and the railroad company seeks to avoid liability on the ground that it was being operated by the Government.

The act of Congress to provide for the termination of the Federal control of railroads, approved 20 February, 1920, sec. 206 (a), provides that actions at law “of such character as prior to Federal control could have been brought against such carrier, may, after the termination of Federal control, be brought against an agent designated by the President, and such action may be brought in any court which but for Federal control would have jurisdiction of the cause of action had it arisen against such carrier.” Another subsection provides that final judgment shall be promptly paid out of the.revolving fund created by section 210 of said act.

This exception need not be again discussed, as it has been fully considered, and we have repeatedly decided that both the Director General and the corporation itself are proper parties in such actions as this. Clements v. R. R., 179 N. C., 225; Hill v. Director General, 178 N. C., 609, citing numerous cases. The above have been reviewed and reaffirmed since in Gilliam v. R. R., 179 N. C., 508; Vann v. R. R., 180 N. C., 659; McGovern v. R. R., ib., 219.

The plaintiff rests her case largely upon the ground that it was dark, and the ordinances of Weldon required that there should be a “light at the rear end of the train and front end of the train at night”; and even if it was not night or not dark, the defendant failed to give timely warning, and there was evidence that there was no light at. the end of train, and no notice given of the approach of the train except the warning to jump given by the defendant’s crossing-master, which contributed, it would seem, if it did not cause the injury to the plaintiff. In any event, tbe running of the train backwards without a light, signal, or other warning of its approach was negligence. Shepherd v. R. R., 163 N. C., 518, quoting numerous cases, among them Purnell v. R. R., 122 N. C., 832, in which the plaintiff’s intestate was killed by a backing train in the same town of Weldon, and at a short distance from the scene of this occurrence, the train backing into the depot without displaying a light from the front end of the leading car, and without a flagman to give warning. The precedents are too numerous, as quoted in Shepherd's case, to be again reviewed.

The evidence in the present case was that the sun set at 5 :36 p. m., and that the injury to the plaintiff occurred a few minutes after 6 o’clock; that there was no light on the advancing train; that it was a cloudy evening, and drizzling .rain, and that it was a most frequented crossing. It was for the jury to say whether or not it was negligence for the defendants not to have had a light on the advancing end of the train, which was running backwards. Powers v. R. R., 166 N. C., 602; McNeil v. R. R., 167 N. C., 396; Dunn v. R. R., 174 N. C., 258. And, also, whether there was a light or not.

There was no error in admitting proof of the ordinance of the town. The ordinance did not change the law already laid down in Purnell v. R. R., 122 N. C., 840. It was negligence to back the train over the crossing without a light if it was dark, or without a flagman if it was not. Lloyd v. R. R., 118 N. C., 1010; Mesic v. R. R., 120 N. C., 490; Allen v. R. R., 149 N. C., 260. The authorities are thus summed up in Russell v. R. R., 118 N. C., 1109 : “A person who drives up to a crossing in a town or city where there is a custom to close the gates so as to prevent the passage of vehicles when -trains are approaching, and open them when there is no danger, is not negligent if he drives upon the track, because the watchman is not on duty.” The plaintiff had the right to expect the company would not omit to give the usual alarm, and is not culpable for acting upon that supposition. The watchman should have known if this train was going to back. The train had passed there a few minutes before.

The occupants of the automobile had a right to rely upon the protection that should have been given at this public crossing by a light on the front end of the backing car, or by a-flagman or by a watchman, especially as there were no gates. It would seem from the evidence that when the watchman discovered that the train was backing, he did run out and give a warning by shouting to “Stop, stop”; but this must have been too late, as he added, according to the evidence, “Jump, jump, jump,” and in obedience to that direction the plaintiff did jump and was injured. It was for the jury, to say where the flagman was and what he did and whether he gave sufficient and timely warning. As the injunction to stop and tbe order to jump were given simultaneously, it must bave been too late, and tbe train must bave already reached tbe crossing, as tbe plaintiff was injured in obeying tbe instructions to jump. Evidently the flagman did not appear until tbe automobile was either on tbe track or near enough to it to be struck by tbe backing train. There was evidence that tbe watchman bad been sick for a long time before be was given this appointment, and on account of bis infirmities bad been retired by bis former employer, the express company. He was old and slow in bis movements. There was ample evidence to submit to tbe jury tbe question as to negligence of tbe defendants, and it was fairly submitted to tbe jury, who bave found it in tbe.affirmative.

As to tbe contributory negligence, tbe burden of which was upon tbe defendants, tbe plaintiff was not driving tbe automobile, but was only a guest or passenger in the car. There is no evidence that she bad any control over tbe movements of tbe car, and tbe negligence of tbe driver, if there was any, cannot be imputed to tbe passenger. Duval v. R. R., 134 N. C., 333; Baker v. R. R., 144 N. C., 43, and citations (Anno. Ed.); Hunt v. R. R., 170 N. C., 444, which distinguishes Bagwell v. R. R., 167 N. C., 611, which was relied upon by tbe defendants; Thompson on Negligence, sec. 502; 20 R. C. L. Negligence, sec. 137; Herman v. R. I., L. R. A., 1515 A, 766.

In sudden peril or emergencies while tbe plaintiff was “bound to take active measures to preserve herself from impending barm, she was by no means held to tbe same judgment and activity under all circumstances. Tbe opportunity to think and act must be taken into consideration. And although she may not bave taken tbe safest course or acted with tbe best judgment or greatest prudence, she can recover for injuries sustained upon showing that she was required to act suddenly or in an emergency, without opportunity for deliberation. It has been said that when a choice of evils only is all that is left to a man, be is not to be blamed if be chooses one, nor if be chooses tbe greater, if be is in circumstances of difficulty or danger at tbe time, and compelled to decide hurriedly.” Dyer v. R. R., 71 N. Y., 228; Hamlin v. Budge, 56 Fla., 342; R. R. v. Tauhey, 67 Ark., 209; Gannon v. R. R., 173 Mass., 40; Elec. Co. v. Hudgin, 100 Va., 419. Tbe subject is elaborately considered by Hoke, J., in Norris v. R. R., 152 N. C., 513-515, citing numerous cases; and especially is this so in this case, where tbe injunction to jump came from a watchman of tbe defendant. It could not be negligence for her upon tbe spur of tbe moment to act upon such direction from the servant of tbe defendant, even if it might bave been wiser, if she bad bad full time for reflection, to bave done otherwise.

There was no error in admitting the town ordinance, and we think it has been properly proven, O. S., 2825; and tbe instructions of tbe court in respect thereto were correct. There was sufficient evidence to go to the jury of the negligence of the defendant, and the question whether a timely warning was given was properly submitted to the jury, which found that this was not done.

Nor can we see any foundation for the defendant’s objection to admission of proof that the injuries of the plaintiff were embarrassing and humiliating. The authorities are ample that this testimony was properly admitted. Britt v. R. R., 148 N. C., 37; Carmichael v. Tel. Co., 157 N. C., 21.

Evidence as to the physical and mental condition of the watchman was competent as tending to show negligence in having a watchman incompetent physically in that place. The exceptions to the refusal to give special instruction number five cannot be sustained, as it was substantially given in the charge.

The criticism of the charge that it is in conflict with Kimbrough v. Hines loses sight of the important fact that the plaintiff in this action was not the driver of. the car. It was held in the Kimbrough case that while the law does not impose on the driver of the car the absolute duty to stop that his failure to do so may be considered by the jury on the question of the exercise of ordinary care, and that it was error to omit this element in the charge, but this principle can have no application to the plaintiff, who was a guest in the car, to whom the negligence of the driver, if any, will not be imputed, and who had no control over the car and could not stop it.

All that could be required of the plaintiff was to look and listen and to warn the driver of approaching danger, and this duty was imposed on her in the charge.

The prayers for instructions are also objectionable on the same ground in that they in effect required the judge to charge that the plaintiff could not recover if the driver of the car was negligent.

The court charged on the above phases of the case as follows:

“If you should find from the evidence that the plaintiff in approaching the crossing could have seen, by looking, this moving train and could have known the train was moving towards the crossing, by listening, and that she could have seen it in time to have requested the driver of the car to stop, and you find that if she had requested the driver of the car to stop she would have stopped in time to avoid the injury, that would be the proximate cause of the injury and not the negligence of the defendant, and you should answer the first and second issues No.’

“If you find from the evidence that the watchman was there with his board, and gave timely warning — the defendants contend that he told them to stop, and waved his board when they were twenty feet away, and contends that there was plenty of time in which the car could have been stopped before reaching the crossing.

“Or if yon shall find that Weaver, one of the brakemen, was there at the crossing, and before the automobile got within twenty feet of the crossing he warned them of danger and told them to stop, and they disregarded such warning and drove on, the defendant company would not be liable, and you would answer the first issue No.’

“If you find from the evidence and by the greater weight thereof, the burden being on the defendant to so satisfy you, that the plaintiff, by looking and listening, could have seen this moving train in time to have prevented the injury, and that her sister, Mrs. Scott, would have stopped the car if she had been requested to do so, and find that was the cause of the injury, she would be guilty of contributory negligence, and you would answer the third issue 'Yes/

“If Mrs. Scott was guilty of contributory negligence in driving the car, her negligence would not be imputed to the plaintiff. The-plaintiff is not responsible for the negligence of Mrs. Scott, unless you find that the plaintiff was negligent in not looking and listening, and not requesting Mrs. Scott to stop, and further find that Mrs. Scott would have stopped if the plaintiff had so requested.

“If you find that Mrs. Scott was negligent in driving the car, and you find that was the sole cause, the sole proximate cause of the injury, why then you would answer the first and second issues No.’ ”

As to exceptions II, 18, and 19, it is sufficient to say that if there was warning given in time to stop the automobile, which the plaintiff’s evidence contradicts, this cannot be imputed to the plaintiff. In the recent case of Hunt v. R. R., 170 N. C., 444, it is said by Hoke, J.: “There was evidence tending to show that the driver of the automobile looked and listened before entering on the crossing, and it is held with us that it is not always, and as a matter of law, required that a vehicle should come" to a stop before endeavoring to cross. Shepard v. R. R., 166 N. C., 539, and Elkins v. R. R., 76 W. Va., 733. Furthermore, it is held by the great weight of authority that negligence on the part of the driver of an automobile will not, as a rule, be imputed to another occupant or passenger unless such other occupant is the owner or has some kind of control over the driver. This is undoubtedly the view prevailing in this State. See a learned opinion on the subject by Associate Justice Douglas in Duval v. R. R., 134 N. C., 331, citing Crampton v. Ivie, 126 N. C., 894, both of these decisions being aj)proved in the more recent case of Baker v. R. R., 144 N. C., 37-44. And see, also, a valuable article on the subject in 2 Ruling Case Law, secs. 42 and 43, in which the position is also stated with approval, and Nonn v. R. R., 232 Ill., 387. There is nothing in the case of Bagwell v. R. R., 167 N. C., 611, that in any way militates against this position. On the contrary, the principle announced in Crampton v. Ivie is there expressly approved, and the verdict and judgment in favor of the railroad was sustained on the ground that, under the charge of the court, the jury had necessarily negatived any negligence on the part of the defendant.”

An examination of the whole charge shows that it presented every phase of the controversy to the jury, and in some respects was perhaps more favorable to the defendant than it was entitled to have.

On careful consideration of all the exceptions, we find

No error.

Walker, J.,

dissenting: There was testimony tending to show that the automobile, in which were Mrs. Scott and Mrs. Parker (the plaintiff), was being driven very slowly as it approached this dangerous crossing, which was a well known one to the driver, as she had passed over it before. Mrs. Scott herself testified: “As I came on towards the crossing where we were to cross, I slowed down my car almost to a standstill,” and again she stated: “I went towards this crossing; I was going slowly, because I had just crossed some tracks. Possibly I was going along there about two or three miles an hour. When I first saw these cars I was going very slowly. I had come by express office very slowly. I always go slowly along there, for I realize the danger of the point and always slow down.” The defendants’ testimony tended to show that the signal to stop was given when the ear was as much as twenty-five feet from the track on which the backing train moved, and it varied from that down to ten feet. Ed. Weaver testifying that Mr. Poe, who was stationed at the crossing,' was waving his “stop signal,” and witness hollered to them, “Look out, ladies, stop,” and at that moment the car had reached a point ten feet from the pass track, on which was the train. ' Mr. J. S. Holliday testified that when they were told to stop the car was about twenty-five feet from the track. The testimony tends to show that several, Ed. Weaver, Mr. Poe, and J. S. Holliday, and -perhaps others, signaled them to stop at short intervals from the time the car was as much as twenty-five feet distant to the time it was ten feet from the track, and even afterwards, as Mr. Poe did so until the near approach of the train compelled him to leave the track and he barely escaped to a place of safety. Ed. Weaver and Mr. Poe were close by the car when they signaled, and Mr. Holliday was about forty yards away, but everything, as he said, was in plain view.

There can be no question, if the defendants’ testimony is credible, that ample warning was given to stop the car because of imminent danger ahead, as Poe had the danger signal in this hand and was waving it, and all of them at the place were frantically warning them with loud voices to stop then and there. The strong evidence that they did hear the signal was that of Mr. Holliday, who stated that he was coming from the tool-house, and when he was about forty yards distant from the crossing he first heard the signal given by Mr. Poe and Ed. "Weaver.

Some of the witnesses testified that they heard the watchman and brakeman “yelling” for them to stop, and L. J. Holloman that he heard some one yelling “stop” when he was about one hundred and twenty-five yards from there. Several witnesses testified that it was daylight when the accident occurred.

There is other evidence for the defendant, upon the question of timely warning to stop the car and not cross the tracks, but it is not the strength or weight of the evidence we are so much concerned with, as the fact that there was evidence that sufficient warning was given.

In view of this testimony, the defendant requested that certain instructions be given to the jury, which were refused, and exception taken thereto, and also to an instruction by the court, as follows: “If you find from the evidence and by the greater weight thereof, the burden being on the defendant to so satisfy you, that the plaintiff by looking and listening could have seen this moving train in time to have prevented the injury, and that her sister, Mrs. Scott, would have stopped the car if she had been requested to do so, and find that was the cause of the injury, she would be guilty of contributory negligence, and you would answer the third issue ‘Yes/ but unless you do so find you would answer the issue No.’ ”

The instructions rejected were as follows:

“1. If the jury shall find from the evidence that the driver of the automobile heard the warning of the crossing watchman .and stopped the automobile near the track and at a place of safety, and that she then started the automobile and drove upon the track, and that plaintiff, in attempting to get out of the automobile, fell and was run over by the train and injured, the jury will answer the first issue ‘No/ and the second issue ‘No.’

“2. If the jury shall find from the evidence that the defendant’s conductor sent the defendant’s switchman, Ed. Weaver, to watch the crossing, and that Ed. Weaver was standing at the crossing as the automobile and the train approached the point of collision, and that he gave the driver of the automobile notice that a train was approaching in time for the driver to have stopped the automobile before driving on the track, the jury will answer the first issue ‘No/ and the second issue ‘No.’ ”

In view of this testimony, the judge was in error when he charged the jury that the driver of the car, as she approached the crossing, was required only to look and listen, and if she did both and neither saw nor heard the moving train, which was backing on the track, it was not negligence for her to proceed and cross the tracks. The duty to look and listen was the only one the law imposed upon Mrs. Scott or the plaintiff, as the jury would be led to infer from the instruction, whereas, we have held in Kimbrough v. Hines, 180 N. C., 274, that a person approaching a crossing is required to do more than merely to look and listen, as he must also exercise the care which a person of ordinary prudence would use in the same circumstances, and that the failure to stop before crossing the tracks might be considered on the question of due care, with such other evidence as bore upon the question. We also held in the Kimbrough case that if there was negligence of the plaintiff in the respect indicated, it would not be excused by the failure of the defendant’s engineer to ring the bell or blow the whistle as a signal that the train was moving, or about to move, toward the crossing. There was evidence to support this view, for some of the witnesses said that it was daylight, and the plaintiff, as well as the driver, could have seen the train if they had looked, or heard it if they had listened, or, at least, there was evidence from which the jury could have found as much.

But his Honor charged the jury that if Mrs. Scott, the driver, was guilty of negligence, it would not be imputed to the plaintiff, unless the plaintiff was negligent in not looking and listening, and not requesting Mrs. Scott to stop the car, and the jury find that Mrs. Scott would have complied with the request. There are two objections to this instruction: (1) It should have been qualified by the further instruction that if Mrs. Scott was negligent, and this was the sole proximate cause of the injury, the plaintiff could not recover, and the jury should answer the first issue “No,” as in that case the plaintiff would be bound by Mrs. Scott’s negligence, though she was a mere guest in the car. Crampton v. Ivie, 126 N. C., 894; Bagwell v. R. R., 167 N. C., 611; 2 R. C. L., 1205. The negligence of Mrs. Scott would not be imputable to plaintiff only if it united with defendant’s negligence to cause the injury. If it was itself the proximate cause of the wrong to plaintiff, the doctrine of imputable negligence had no application whatever, and the instruction must have misled the jury. (2) But the judge further stated in this instruction, and two others, that if the plaintiff would have seen or heard the moving train from her side of the automobile, if she had looked and listened, in time to have prevented the injury, and Mrs. Scott would have stopped her car if plaintiff had requested her to do so, and the jury find that this was the cause of the injury, it would be negligence on her part, and they should answer the first issue “No,” and the second issue “Yes.” If the plaintiff knew the train was backing towards them, it was her duty to have warned the driver, Mrs. Scott, and requested her to stop the automobile, regardless of whether she would have done so or not. If she could have seen or heard the train moving had she looked and listened and she failed to look and listen she was negligent, as the gar was approaching a railroad crossing, which is a place of danger always, where trains are continually passing. There was no positive evidence to show that Mrs. Scott would have stopped, but the law of self-preservation raises a strong presumption that she would instinctively have done so. But the learned judge, as it appears, confused the doctrine of imputable negligence with the independent negligence of the plaintiff herself, whereas, they are two quite different things in the law. As we have already said, whether Mrs. Scott’s negligence was imputable to the plaintiff depended upon whether it was concurrent with that of defendant, and if so, it was not so imputable. If Mrs. Scott’s negligence was the sole proximate cause, the negligence of the plaintiff, if any, was a negligible quantity, as Mrs. Scott’s negligence in that case would alone be sufficient to defeat plaintiff’s recovery; that is, if it was the sole proximate cause of the injury, and his Honor so instructed the jury, but not in connection with or as a qualification of his previous instruction just commented upon. The jury could not, therefore, tell which one was correct. Edwards v. R. R., 132 N. C., 99.

But, however the case may be so far, the instruction that the jury should answer the first issue “Yes,” if the defendant had a watchman at the crossing, and he failed to give timely warning of the moving train, and no other warning or signal was given by bell or whistle, or otherwise, until the plaintiff was too near the track for it to avail her, and this was the proximate cause of the injury, was erroneous. This instruction entirely excluded such notice or warning of the approaching train as plaintiff or the driver would have acquired by looking and listening, or by otherwise exercising the care of an ordinarily prudent person before crossing so dangerous a place as every one described it to be. "We must keep in mind that the jury were instructed to answer the first issue “Yes,” if the particular warnings enumerated in the instruction were not given.

It also excluded from consideration the notice she would have received from stopping if under the circumstances an ordinarily prudent person would have done so at such a dangerous crossing as the plaintiffs themselves admit it is, and as this Court describes it. But it cannot be successfully questioned that it was error to make the plaintiff’s exercise of proper care depend upon what her sister and companion, who was driving the car, would have done. She should have performed her part without regard to her sister’s conduct, and then she could well acquit herself of any blame. Her sister’s negligence cannot be imputed to her, and would not affect the case adversely to her unless it was the sole proximate cause of the injury to her. There is no statute of this State abolishing grade crossings or requiring gates to be maintained at them to prevent accidents of this kind. This is a matter of public policy, and is peculiarly within the province of the Legislature to deal with, but even the absence of gates does not excuse the failure to look and listen in proper eases, and there was evidence that it was daylight, and the photograph tends to show that the train could have been seen by the exercise of ordinary care, and the Kimbrough case (180 N. C., 274) requires that the driver of the car should look and listen and stop if necessary for safety in crossing.

The question as to whether the plaintiff exercised proper care when she jumped from the car was for the jury, eren though she was confronted by a sudden peril. She must, have acted as a person of ordinary care would have done in similar circumstances.

As to the Federal statute: This act of Congress was passed when the railroads were returned to the owners in 1920, and this action was brought since its passage. The act of 1920 requires that all suits be brought against the agent appointed to represent the Government and not otherwise, and that any judgment recovered shall be paid out of the revolving fund. The railroad company is not a necessary or proper party under this act, the Government’s agent being the only defendant. There was a perfectly good reason for this change. The Government thereby assumed sole responsibility for all damages sustained during its administration, and provided a fund to pay them, and a speedy method of collection. The cases, therefore, which are cited in the opinion of the Court have no application, as they were based entirely upon prior statutes, and the act of 1920 was not considered by any of them. It would, therefore, seem that the action should have been brought against the Federal agent and not against the company, as the agent is constituted the sole defendant. Lanier v. Pullman Co., 180 N. C., 406, refers to this method of adjustment, but does not refer specifically to the act of 1920, as the question was not involved in that case.

In our opinion the action should be dismissed as to the railroad company, or, at least, that, as there was material error, there should be a new trial.

Stact, J., concurring in dissent.