In Gunter v. Wicker, 85 N. C. 310, this court gave its sanction to the principle first distinctly formulated in Davies v. Mann, 10 M. & W. (Ex.) 545, that “Notwithstanding the previous negligence of the plaintiff, if at the time the injury was done it might have been avoided by the exercise of reasonable care and prudence on the part of the defendant, an action will lie for damages.” This doctrine was subsequently approved in Saulter v. Steamship Co., 88 N. C. 123; Turrentine v. Railroad, 92 N. C. 638; Meredith v. Iron Co., 99 N. C. 576; Roberts v. Railroad, 88 N. C. 560; Farmer v. Railroad, Ibid. 564; Bullock v. Railroad, 105 N. C. 180; Wilson v. Railroad, 90 N. C. 69; Snowden v. Railroad, 95 N. C. 93; Carlton v. Railroad, 104 N. C. 365; Randall v. Railroad, 104 N. C. 108; Bullock v. Railroad, 105 N. C. 180, and it was repeatedly declared in those cases that it was negligence on the part of the engineer of a railway company to fail to exercise reasonable care in keeping a lookout not only for stock and obstructions but for apparently helpless or infirm human beings on the track, and that the failure to do so supervening after the negligence of another, where persons or animals were exposed to danger, would be deemed the proximate cause of any resulting injury.
[As to argument for defendant.] But the reasons and the authorities relied upon emanate generally from courts which hold that both persons and animals upon a track are trespassers and entitled to consideration only where actually seen in time to save them....
It cannot be denied that, in a number of the states which have adopted the doctrine of Davies v. Mann, it has also been held that both man and beast were trespassers when they went upon a railway track and except at public crossings or in towns it was not the duty of the engineer to exercise care in looking to his front with a view to the protection of either. Where the law does not impose the duty of watchfulness it follows that the failure to watch is not an omission, of duty intervening between the negligence of the plaintiff in exposing himself and the accident, unless he be actually seen in time to avert it. The negligence of the corporation grows out of omission of a legal duty and there can be no omission where there is no duty prescribed.
We are of opinion that, when by the exercise of ordinary care an engineer can see that a human being is lying apparently helpless from any cause on the track in front of his engine in time to stop the train by the use of the appliances at his command and without peril to the safety of persons on the train, the company is liable for any injury resulting from his failure to perform his duty. If it is the settled law of North Carolina (as we have shown) that it is the duty of an engineer on a moving train to maintain a reasonably vigilant outlook along the track in his front, then the failure to do so is an omission of a legal duty. If by the performance of that duty an accident might have been averted, notwithstanding the previous negligence of another, then, under the doctrine of Davies v. Mann, and Gunter v. Wicker,[[214]] the breach of duty was the proximate cause of any injury growing out of such accident, and where it is a proximate cause the company is liable to respond in damages. Having adopted the principle that one whose duty it is to see does see, we must follow it to its logical results. The court committed no error of which the defendant could justly complain in stating the general rule which we have been discussing.
DYERSON v. UNION PACIFIC RAILROAD COMPANY
Supreme Court, Kansas, November 10, 1906.
Reported in 74 Kansas Reports, 528.
Plaintiff sued for damages caused by being struck by the tender of an engine.
Plaintiff, an employee of the R. R. Co., had occasion to cross the track. As he was about to step upon the track, he was struck by the tender of a locomotive which was backing east at the rate of fifteen or twenty miles an hour without giving a signal of its approach and without keeping a lookout along the track. The track was straight for a quarter of a mile west. It was a clear day, and there was nothing to have prevented the plaintiff from seeing the engine and tender if he had looked.[[215]]