Mercer v. Powell, 218 N.C. 642 (1940)

Dec. 20, 1940 · Supreme Court of North Carolina
218 N.C. 642

MRS. NEALER MERCER, Administratrix of the Estate of A. H. MERCER, v. L. R. POWELL, JR., and HENRY W. ANDERSON, Receivers of the SEABOARD AIR LINE RAILWAY COMPANY, and A. A. WEBB, Administrator of G. S. STEPHENSON.

(Filed 20 December, 1940.)

1. Railroads §■ 10—

No presumption of negligence on tine part of a railroad company arises from the mere fact that the mangled body of a man is found along the track.

2. Same—

A pedestrian voluntarily using a railroad track as a walkway is required to exercise due care for his own safety, and his failure to avoid a moving train is contributory negligence.

3. Negligence § 10—

It is only when the person injured has been guilty of contributory negligence that the doctrine of last clear chance may be invoked.

4. Same: Railroads § 10 — Burden is upon party invoking doctrine of last clear chance to prove beyond speculation or conjecture every material fact necessary to support the issue.

Where plaintiff invokes the doctrine of last clear chance in an action to recover for the death of his intestate, killed when struck by a train, the burden is upon plaintiff to show that at the time intestate was struck he *643was clown or in an apparently helpless condition on the track, that the engineer saw or in the exercise of due care could have seen him in such condition in time to have stopped the train before striking him, and that there was a failure to keep a proper lookout, which failure was a proximate cause of the injury; and plaintiff must offer legal evidence in support of each of these material facts, and evidence leaving any one of them in mere speculation or conjecture is insufficient.

5. Railroads § 10—

The doctrine of last clear chance does not apply unless the licensee or trespasser upon the tracks is in an apparently helpless condition, since otherwise the engineer has the right to expect, up to the moment of impact, that he will exercise due care for his own safety and leave the track in time to avoid injury.

6. Same — Whether intestate was lying on track when struck, and if so, whether he had been in such position for length of time sufficient to invoke doctrine of last clear chance, held conjectural upon the evidence.

In this action hy plaintiff to recover for the death of his intestate struck and killed by defendant’s train, the evidence tended to show that intestate was seen in a drunken condition near the scene of the accident prior to twelve o’clock on the night of the fatal injury, that early on the following morning dismembered and mangled portions of his body and bits of clothing were found between the rails and on one side of the track, that blood was found on the inside of the rails and on the pilot of the engine about two inches from the bottom and near its center, and that between the rails opposite where the blood was found, there was a gouged out place in the dirt about three inches deep and the size of a man’s body, that next to this place the grass was flat or mashed down about the area of a man’s body and that opposite this place on the outside of the track near a dirt crossing were found burned match ends, cigarette ends and a cigarette package. Held: Although the evidence shows that the body was prone on the tracks when the train passed over it, the position of intestate when struck and how long he had been in that position is left in mere speculation and conjecture, and therefore the evidence is insufficient to take the case to the jury under the doctrine of last clear chance.

Seawell, J., dissenting.

Clarkson and Devin, JJ., concur in dissent.

Appeal by plaintiff from Clement, at March Term, 1940, of Bichmond.

Civil action for recovery of damage for alleged wrongful death. C. S., 160-161.

Plaintiff alleges that the intestate A. H. Mercer was killed on the early morning of 10 July, 1937, at around 3 o’clock, when an engine and train of defendants, and operated by G. S. Stephenson, engineer, ran 'over him at or near a point some three miles east of Laurinburg, known as Southerland Crossing, and that his death “was caused by the negligence and carelessness of the defendant receivers, and their said engineer, in that while plaintiff’s intestate was in a prostrate and helpless condi*644tion on tbe defendants' said track, tbe defendants negligently and carelessly ran tbeir engine and train upon and over bis body”; in that defendants’ engineer failed to bave tbe engine equipped with proper lights, and to keep a proper lookout so tbat be could and would bave observed tbe intestate to be in a prostrate and helpless condition in time to bave avoided running over intestate; and in tbat said engineer “failed to sound tbe whistle of said engine” and “to give other warning tbat might arouse or startle tbe plaintiff’s intestate.”

Defendants deny tbe material allegations of tbe complaint and plead contributory negligence of plaintiff’s intestate in bar of any right to recover herein.

After tbe institution of tbe action and answer filed, defendant, G. S. Stephenson, died, and A. A. Webb, who was duly appointed as administrator of bis estate, was made a party defendant and came into court and adopted tbe answer of other defendants.

In reply, tbe plaintiff alleges tbat notwithstanding any negligence on tbe part of plaintiff’s intestate, tbe defendants in tbe exercise of proper care could and should bave discovered tbat be was in a helpless condition on tbeir railroad track in time to bave avoided running over him with tbeir train, and tbat defendants bad tbe last clear chance of preventing tbe injury and death of intestate.

On tbe trial below there was judgment as of nonsuit at close of plaintiff’s evidence.

Evidence for plaintiff tended to show substantially these facts as of tbe date of A. H. Mercer’s death, 10 July, 1937: On tbe Southerland farm in Scotland County, a dirt road “kept up by tbe State” leading from Highway No. 74 to tbe old Maxton-Laurinburg road crosses the main line, single track, of Seaboard Air Line Railroad, which runs from Wilmington via, Lumberton, Maxton and Laurinburg to Hamlet, all in North Carolina. Tbe railroad runs east and west and tbe dirt road north and south. This crossing is known as Southerland Grossing and is located about three or four miles east of Laurinburg, and one and three-fourths miles to two miles east of Dixie Siding, where Mercer was last seen. Tbe railroad is straight and practically level, “no grade much,” at this crossing. This condition extends a mile or more in both directions. For tbe entire width of tbe road across tbe track dirt is filled in level with tbe top of tbe rails, gradually sloping at tbe edges down to tbe level of tbe railroad ties, four or five inches below, thus forming a fill of tbat height. Grass was growing between and on tbe outside of tbe rails, but not on tbe road fill.

A. H. Mercer was in good health, one-armed, and weighed about 195 pounds. He lived in tbe town of Hamlet, and was engaged in tbe bottling business, selling more than 4,000 cases tbe month be was killed. *645He left borne about one o’clock in tbe afternoon of said date, driving a 1936 maroon Ford car; and about four o’clock next thereafter be appeared in Lumberton at tbe Green Frog, where drinks and beer were sold, and where be first treated “a bunch in there” to beer, and remained there two or more hours, drinking beer, ten or more bottles, until about dusk “six or seven or eight o’clock” when he left, “pretty drunk,” walking up the street north. "While at the Green Frog “he had a roll of money on him,” and had a twenty dollar bill changed. Thereafter about nine o’clock he was first seen in "West Lumberton running through the yard of Ed Parnell, to whom he was slightly related, and in 10 or 15 minutes he appeared bareheaded and in his shirt sleeves on the highway in front of the Parnell house, and on meeting Parnell “made a dive” at, struck and knocked him down, and then ran, striking and cutting his head on a tree. He refused to go to a hospital in an ambulance, but rode into Lumberton with one Jake Regan, a colored man whom he knew, and though the colored man tried to take him to a hospital he refused to enter one. At that time “he was drunk,” “in.a fighting and pugnacious mood,” and “seemed to be bent on fighting with somebody.” Through the colored man he hired for five dollars a taxi, driven by Donnie Lee Porter, an Indian boy, to take him to Laurinburg or Hamlet. On the way the taxi first stopped at a filling station just west of Lumber-ton, where one Prentiss Carter, an Indian, who had not before seen Mercer but who, after asking permission to go with them to Laurinburg, entered the taxi. The next stop was for about 15 minutes at a filling station operated by an Indian about one mile from Pembroke. Mercer went in there and washed the blood off his face, bought some beer and paid for it in change. They traveled, and on the way, Mercer “wanted to turn around and come back . . . wanted to get out . . . wanted to go back to Lumberton . . . but Donnie Lee would not let him . . . would not bring him back but kept on going” until between eleven and eleven-thirty o’clock they arrived at Bryant’s filling station, just east of Laurinburg and about one and three-fourths miles from Southerland Crossing. There Mercer ordered beer and, according to Carter, drank a couple or three and, according to Bryant, an order for two beers and a Coca-Cola was filled and Mercer got out of the taxi with his beer in hand and went to the rear of the filling station, walking along the road leading across the railroad, saying he would be back in a few minutes. At that time he was staggering. So far as the evidence discloses he was not again seen alive. After searching in vain for him with a flashlight a few minutes later, around the back of the filling station and along the railroad, Donnie Lee Porter and Prentiss Carter left about twelve o’clock in the taxi, going toward Lumberton. Carter testified that they came back to Lumberton. One Bruce Peel, *646wbo lived across the railroad about 75 or 80 feet from the right of way from the Bryant filling station at Dixie Siding, and who, on account of the heat of the night, was sitting on his front porch, testified that he saw a yellow car drive up to the filling station, and referring to someone coming out with a flashlight, he said, “I had not seen anyone go either way until they come with the light.”

About twelve o’clock when Frank Carmichael, in returning to his farm for another load of cantaloupes which he was hauling, crossed the railroad at Covington Siding, located about two and one-half miles east of Laurinburg and one mile west of Southerland Crossing, “someone got to yelling” at him, “Hey, there,” about three times, the voice sounding like it came from “on the south side of the railroad track.” After reloading and while he was returning, and before he reached the railroad, close to one o’clock, a freight train passed going west, after which he and some colored men searched up and down the track “to see if they could find any signs of anyone being hurt there, but did not find anyone there.”

Further, while Melvin Robinson, who had been packing cantaloupes, was going to his home about a mile from Southerland Crossing, between twelve-thirty and one o’clock, he heard someone “hollering down there . . . did not hear him say any words. Sounded like someone was kind of jolly and hollering.”

Also, about three o’clock Bruce Peel, who was at home in bed at Dixie Siding, heard screaming, “sounded like a woman was putting up some screaming east of there. . . . The screaming did not last long . . . was in the direction of Southerland Crossing” . . . about two miles away, though he could not locate it.

Another Seaboard freight train, consisting of engine and “more than 15 or 20 cars,” going west, running at 20 to 25 miles per hour, with good headlight, operated by G. S. Stephenson as engineer, and on which Jesse Staten was flagman, passed Southerland Crossing at some time that morning variously estimated to have been between three and five-thirty o’clock. This train, after leaving Lumberton, did not stop at Maxton or Southerland Crossing and not until it reached Dixie Siding, where it put off cars at the Morgan Mills. It did not blow for Souther-land Crossing. The train could be heard before it could be seen by one 250 to 300 yards away. It was a fair night and the moon was shining; and also, there was fog up toward Maxton and down around Dixie Siding, but it was clear on the hills. The flagman, Jesse Staten, testified that he was riding on the left-hand side of the engine, sitting on the seat, in front of the fireman’s box looking out in front, and “Yes, the fog kind of had your view cut off. I could see three or four car lengths, *647something like that. . . . The headlight was burning all the way from Wilmington. ... It was in good shape.”

Dismembered, mangled and crushed portions of the body, including bits of flesh and blood, and portions and bits of clothing, were found, beginning with blood on inside of rails opposite the east edge of the road fill at Southerland Crossing and extending in a westerly direction for about two miles to Dixie Siding. There was blood all the way across the road fill, and a necktie untied, lying stretched out between the rails on the west side of the fill. Two or three steps from the railroad— four or five feet from the end of the ties — were one shoe and “the man’s heart” lying in the edge of the weeds. Near Dixie Siding there were found a part of a pair of pants, including the watch pocket in which there was a dollar bill, and another part including the hip pocket in which there were ten dollars in bills, the driver’s license and other papers of A. TL Mercer. These parts of clothing were nearer the right-hand rail looking west, and the bits of clothing and flesh found in that vicinity were on the spikes at the right-hand rail.

The grass on the east end of the road fill was mashed down in between the rails, variously described as “about the size of a man’s body,” . . . “looked like there had been a little scramble on the grass there . . . near the right-hand rail looking west,” “looked like it was kind of flattened down . . . right at the crossing . . . might have been a foot or two from the crossing ... a small place . . . something like 3 to 4 feet in length and not much more than 18 inches or two feet wide . . . long part of it ran up and down the T-irons.” Outside of the rail on the north side of the railroad and on the east side of the highway there were some burned match ends, cigarette ends and a cigarette package, opposite the place in the grass above referred to. There was a “gouged out,” “sculfed up” place in the dirt on the east side of the road fill next to the grass midway between the rails, something like three inches deep, “about the size of a good stout man’s body, from his belt to his shoulders .' . . 18 or 20 inches wide and about 3 feet long.” The signs of blood on the inside of rails east of road fill were opposite this place. There was “a little blood on the pilot of the engine, ... an inch or an inch and a half from the center of the pilot . . . about two inches from the bottom of the pilot. The pilot is kind of Y-shaped.”

From judgment as of nonsuit at the close of plaintiff’s evidence, plaintiff appeals to Supreme Court and assigns error.

Clyde A. Douglass and Jones & Jones for plaintiff, appellant.

Fred W. Bynum and Yarser, McIntyre & Henry for defendants, ap-pellees.

*648WiNbobNE, J.

Tbis question determines the controversy on this appeal: Is there sufficient evidence to take the case to the jury under the doctrine of last clear chance which is invoked by plaintiff? The court below said “No.” With this answer we are in agreement.

The principles of law here involved were recently restated and applied in the case Cummings v. R. R., 217 N. C., 127, 6 S. E. (2d), 837. What is said there is applicable here.

At the outset let it be noted that this is not a case of a railroad crossing accident. To the contrary, plaintiff contends that at the time her intestate was struck by a train of defendants he was down in an apparently helpless condition on the railroad track east of Southerland Crossing.

No presumption of negligence on the part of defendant railroad arises from the mere fact that the mangled body of plaintiff’s intestate was found on the track. This is the uniform holding in the decisions of this Court. Upton v. R. R., 128 N. C., 173, 38 S. E., 736; Clegg v. R. R., 132 N. C., 292, 43 S. E., 826; Austin v. R. R., 197 N. C., 319, 148 S. E., 446; Henry v. R. R., 203 N. C., 277, 165 S. E., 698; Rountree v. Fountain, 203 N. C., 381, 166 S. E., 329; Ham v. Fuel Co., 204 N. C., 614, 169 S. E., 180; Harrison v. R. R., 204 N. C., 718, 169 S. E., 637; Fox v. Barlow, 206 N. C., 66, 173 S. E., 43; Cummings v. R. R., supra.

In Harrison v. R. R., supra, this is said to be the prevailing rule, citing 22 R. C. L., 981, and continuing, “Thus it was held in Ward v. Sou. Pac. Co., 25 Ore., 433, 36 Pac., 166, 23 L. R. A., 715 (as stated in the third headnote, which accurately digests the opinions) : ‘The finding of the body of a child on a railroad track, where it had been struck'by a train, raises no presumption of negligence on the part of the company, although the track was straight and clear, where there is nothing to show the circumstances of the accident, or how long the child had been on the track when struck.’ ”

As stated in Davis v. R. R., 187 N. C., 147, 120 S. E., 827: “The decisions in this State have been very insistent upon the principle that a pedestrian voluntarily using a line of railroad track as a walkway for his own convenience is required at all times to look and to listen, and to take note of dangers that naturally threaten, and which such action on his part would have disclosed, and if in breach of his duty and by reason of it he fails to avoid a train moving along the track, and is run upon and killed or injured, his default will be imputed to him for contributory negligence and recovery is ordinarily barred.”

The doctrine of last clear chance does not arise until it appears that the injured party has been guilty of contributory negligence, and no issue with respect thereto must be submitted to the jury unless there is *649evidence to support it. Redmon v. R. R., 195 N. C., 764, 143 S. E., 829; Cummings v. R. R., supra. When tbe doctrine of last clear cbanee is relied upon, tbe burden is on tbe plaintiff to show by proper evidence:

(1) Tbat at tbe time tbe injured party was struck by a train of defendant be was down, or in an apparently helpless condition on tbe track; (2) tbat tbe engineer saw, or, by tbe exercise of ordinary care in keeping a proper lookout could bave seen tbe injured party in sucb condition in time to bave stopped tbe train before striking bim; and (3) tbat tbe engineer failed to exercise sucb care, as tbe proximate result of wbieb tbe injury occurred. Upton v. R. R., supra; Clegg v. R. R., supra; Henderson v. R. R., 159 N. C., 581, 75 S. E., 1092; Smith v. R. R., 162 N. C., 29, 77 S. E., 966; Davis v. R. R., 187 N. C., 147, 120 S. E., 827; George v. R. R., 215 N. C., 773, 3 S. E. (2d), 286; Cummings v. R. R., supra.

Tbe doctrine of last clear cbance does not apply in cases where tbe trespasser or licensee upon tbe track of a railroad, at tbe time, is in apparent possession of bis strength and faculties, tbe engineer of tbe train which produces tbe injury having no information to tbe contrary. Under sucb circumstances tbe engineer is not required to stop tbe train or to even slacken its speed, for tbe reason be may assume until tbe very moment of impact tbat sucb person will use bis faculties for bis own protection and leave tbe track in time to avoid injury. Redmon v. R. R., supra; Rimmer v. R. R., 208 N. C., 198, 179 S. E., 753; Pharr v. R. R., 133 N. C., 610, 45 S. E., 1021; Reep v. R. R., 210 N. C., 285, 186 S. E., 318; Lemings v. R. R., 211 N. C., 499, 191 S. E., 39; Sherlin v. R. R., 214 N. C., 222, 198 S. E., 640.

There must be legal evidence of every material fact necessary to support tbe issue, and tbe verdict thereon “must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of tbe evidence, and not a mere guess, or on possibilities.” 23 C. J., 51; S. v. Johnson, 199 N. C., 429, 154 S. E., 730; Denny v. Snow, 199 N. C., 773, 155 S. E., 874; Shuford v. Scruggs, 201 N. C., 685, 161 S. E., 315; Allman v. R. R., 203 N. C., 660, 166 S. E., 981. See, also, Poovey v. Sugar Co., 191 N. C., 722, 133 S. E., 12.

In tbe Poovey case, supra, it is said: “ 'The rule is well settled tbat if there be no evidence, or if tbe evidence be so slight as not reasonably to warrant tbe inference of tbe fact in issue or furnish more than materials for a mere conjecture, tbe court will not leave tbe issue to be passed on by tbe jury.’ Brown v. Kinsey, 81 N. C., 244; Liquor Co. v. Johnson, 161 N. C., 77; S. v. Prince, 182 N. C., 790; S. v. Martin, ante, 404. This rule is both just and sound. Any other interpretation of tbe law would unloose a jury to wander aimlessly in tbe field of speculation.”

Tested by these principles, tbe evidence offered with respect to tbe movements of tbe intestate, after be was last seen at Bryant’s filling *650station, a mile and a balf to, two miles west of Southerland Crossing, before 12 o’clock on the night preceding the finding of his mangled body on the railroad, is uncertain, conjectural and speculative. The physical facts present no reasonable theory to the exclusion of many others as to the circumstances under which the accident occurred. The crucial questions are these: In what position was intestate when struck by the train? If down on the track, or in an apparently helpless condition, how long had he been in that position before he was struck? As to these questions the evidence is consonant with any of many theories which may be advanced with equal force, but all of which are speculative and rest in conjecture.

The finding of burned match stems, cigarette stems and a cigarette package outside of the rail east of the dirt road adds no certainty to the uncertain factual situation. In the first place, the record fails to show that intestate smoked cigarettes. In the second place, if it had been shown that he did, isn’t it more probable that while smoking he would have been standing or sitting than lying down? If he had been smoking while lying down inside the track, is it probable that all the match ends and cigarette ends and the cigarette package should have been thrown outside the rail ? Certainly one guess is as good as another —the net result being a guess after all.

Likewise, how and when the grass on the inside of the track came to be mashed down in the manner shown is uncertain and of no probative value. Was the grass mashed by the trampling of someone while standing, or while sitting on the rail? Was it caused by some person sitting or lying down? Or, did someone stop there to smoke and rest from the burden of a load being carried? If either or the other, when was it? Again, any guess is as good as another — a guess after all.

But, supposing the grass was pressed down by the intestate lying there, when was it with regard to the time of the approach of the train that crushed the body? Was he lying there next to the right rail as the train approached? If so, how long had he been there? To answer, calls for more speculation.

It is argued that the scuffed out place in the dirt of the road fill indicated that he was down. To be sure the body was necessarily down when the train passed over it, but the question is, in what position was intestate when struck, and how long had he been in that position ? The evidence is silent.

In fine, the probabilities arising from a fair consideration of all the evidence in the case afford no reasonable certainty on which to ground a verdict upon an issue of last clear chance.

Exceptions to evidence are untenable.

The judgment below is


*651Seawell, J.,

dissenting: Tbe decision in tbis case goes mucb further than any other case decided by this Court involving similar facts. It entirely repudiates the established principle that the wounds upon the body of the deceased, the manner in which it was mangled, dragged, and distributed along the track, is evidence that the person was lying down when struck. This is the basic fact to be established in the instant case; because if the man was down and apparently helpless, there is evidence to go to the jury on all of the elements involved under any of the typical cases which may be cited from our decisions. The leading decisions on this question are ignored: Barnes v. R. R., 168 N. C., 512; Powell v. R. R., 125 N. C., 372; Holman v. R. R., 159 N. C., 44; Hord v. R. R., 129 N. C., 306; Cox v. R. R., 123 N. C., 604; Henderson v R. R., 159 N. C., 583; Treadwell v. R. R., 169 N. C., 694; Fitzgerald v. R. R., 141 N. C., 535; Carter v. R. R., 135 N. C., 498.

In Henderson v. R. R., supra, the evidence was that the body was between the rails, an arm under the trestle; that the body was mangled or, as one witness expressed it, “badly chewed up,” “badly mashed up,” and there was evidence of blood on the rail. The following is quoted in the opinion:

“Q. Did you see any blood, and where did you see it? A. That was on the north side of the trestle, and a bundle on this side — a bundle of overalls.
“Q. What did you see on the roadbed? A. I didn’t see anything unusual except where the man was cut to pieces on the trestle.
“Q. Where was that? A. On the northeast side of the trestle.
“Q. Eight on the side of it? A. You may say the first tie — right on the roadbed between the first and second tie.
“Q. With reference to the T-iron, where was it? A. It must have been right over the T-iron on the east side.
“Q. How far did you see the evidence on the track from where you first observed the condition? A. Over there south, it was about half a dozen or eight ties as far as it was. He was cut right alongside of the trestle after we crossed.
“Q. Where was the head? A. When I first observed the head it was down in the ditch.
“Q. How far was that from the other edge of the trestle? A. The head was north side of the trestle, eight or ten crossties from the trestle.
“Q. Where was the body? A. Eight on the other side, just clear of the T-iron.
“Q. With reference to the railroad track? A. Eight side of the track, just clear of the track on the edge of the crossties, on this end.
“Q. (The court) : Was any part of the body between the rails or outside of the rails? A. To the best of my recollection, the head was *652on one side of tbe railroad in tbe ditcb and tbe body was on tbe other side of tbe track, and tbe arm was down under tbe trestle. I believe tbe other arm was badly mangled.”

This is tbe only evidence in tbe case to establish tbe fact that tbe defendant was down when bit, and upon it tbe court reversed a judgment of nonsuit and sent tbe case back for trial.

Tbe decision also ignores certain facts of tbe evidence and other facts of common knowledge. One is tbe construction of tbe modern locomotive, and tbe ancient locomotive, too, for that matter. Tbe evidence shows that blood was found on tbe bottom part of tbe pilot. What tbe pilot in tbe locomotive is, and what it is for, do not have to be proved. It is commonly known that it is intended to throw obstructions off tbe track when they are struck. It runs within a few inches of tbe track, is in tbe form of an advancing wedge, slanting backwards away from tbe ground in such a manner as to render it practically impossible for a body to be cut and rolled when dragged under tbe engine and mangled as this body was, unless tbe person was lying down when struck. If either standing or sitting, tbe center of gravity of tbe body would be so far above tbe point of impact that a fast moving train would have thrown tbe body to tbe right or left, instead of smearing its vital parts along tbe inside of tbe track for 75 yards and leaving tbe contents of tbe pockets to mark tbe route of progress. This is why some of tbe cases I have cited refer to this mode of proof as a matter of common sense. It is as much a matter of common sense now as it was then.

Since there was blood on tbe lower part of tbe pilot of tbe engine, I make no comment on tbe speculative suggestion in tbe argument that tbe person might have suddenly appeared from practically nowhere and plunged into the side of tbe engine. It would seem that a performance of that sort also might have been observed, if not in time to prevent it, at least in time to be consistent with a reasonable lookout.

To tbe question — “How long bad tbe body been there?”- — -another fact of common knowledge may stand as an answer — corpses do not bleed. Tbe plaintiff alleges that tbe employees of tbe defendant company, tbe engineer and fireman, might have discovered tbe plight of deceased in time to have stopped tbe train, if a proper lookout bad been kept, and on that point it cannot be denied that plaintiff has introduced evidence to establish tbe fact, which, according to tbe weight of authority, should go to tbe jury. Sawyer v. R. R., 145 N. C., 24; Brown v. R. R., 172 N. C., 607; Powell v. R. R., supra; Deans v. R. R., 107 N. C., 686. I have tbe impression that if tbe body of this drunken man bad been a crosstie chained to tbe bed of tbe track, or a chunk of solid granite of tbe same size which bad wrecked the train and caused loss of life to those riding *653thereon, we would have no difficulty in sustaining a challenge to the lookout.

If we are to depart from the precedents which have heretofore obtained in this matter, I think it would be better to formally overrule the cases cited, so that the profession might be no longer left in doubt as to what the law is.

ClaeKsoN and DeviN, JJ., concur in dissent.