The opinion
HoKe, J.
The question of defendant’s liability on the first issue was submitted to the jury in two aspects:
1. That the train approached the crossing without adequate warning, thereby wrongfully causing the death of intestate. .
2. That the crossing was in a defective condition, impeding the progress of the car, and that this was a contributing and proximate cause of the killing.
There was evidence on the part of plaintiff tending to establish the first proposition, and it was proper, therefore, .to submit the issue to the jury; but on careful consideration of the record we are of opinion that there were no facts in evidence tending to establish negligent default as to second position, and, for this error, defendant is entitled to a new trial of the issues. In this respect, there was evidence tending to show that, just before the accident, one or two days, the track at this crossing having become depressed or sunk in, the section master of defendant company and his assistants had raised the track at this crossing some eight inches, put new crossties under it and filled it in with cinders, allowing this to settle overnight; they returned in the morning and filled it up again, and there had been a lot of passing over it during the day with vehicles and machines, having a tendency to pack it. This
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witness testified tbat be regarded cinders as about tbe best thing tbat could be used for making a good crossing, and tbat be always used tbem for tbat purpose wben they could be bad. True, another witness testified tbat he thought plank or fine rock would make a better crossing, but tbe witness also said tbat be bad bad no experience in repairing crossings, and on perusal of tbe entire testimony we find no sufficient evidence to carry tbe question to tbe jury of any negligent breach of duty on tbe part of tbe company in reference to tbe condition of tbe crossing, either as to tbe material or tbe manner in which it was applied, and there was, as stated, prejudicial error in allowing tbe jury to consider tbe case in tbat aspect.
And it was proper, also, to submit to tbe jury tbe question of contributory negligence on the part of tbe intestate. There was evidence tending to show tbat tbe driver of tbe automobile looked and -listened before entering on tbe crossing, and it is held with us tbat it is not always, and as a matter of law, required tbat a vehicle should come to a stop before endeavoring to cross.
Shepard v. R. R.,
166 N. C., 539 , and
Elkin v. R. R.,
86 S. E., 762 .
Furthermore, it is held by tbe great weight of authority tbat negligence on tbe part of tbe driver of an automobile will not, as a rule, be imputed to another occupant or passenger unless such other occupant is tbe owner or has some kind of control over tbe driver. This is undoubtedly tbe view prevailing in this State. See a learned opinion on tbe subject by
Associate Justice Douglas
in
Duval v. R. R.,
134 N. C., 331 , citing Cr
ampton v. Ivie,
126 N. C., 894 , both of these decisions being approved in tbe more recent case of
Baker v. R. R.,
144 N. C., 37 -44. And see, also, a valuable article on tbe subject in 2 Ruling Case Law, secs. 42 and 43, in which tbe position is also stated with approval, and
Non v. R. R.,
232 Ill., 378 . There is nothing in tbe case of
Bagwell v. R. R.,
167 N. C., 611 , tbat in any way militates against this position. On tbe contrary, tbe principle announced in
Grampton v. Ivie is
there expressly approved, and tbe verdict and judgment in favor of tbe railroad was sustained on tbe ground tbat, under the charge of tbe court, tbe jury bad necessarily negatived any negligence on tbe part of tbe defendant.
On tbe second issue, tbe case seems to have been submitted in recognition of tbe principle, and, on tbe record as it now stands, we find no error in tbe way tbe ease was presented to the jury on tbat issue. But for tbe error as to tbe defective crossing defendant is entitled to a general new trial, and tbe same is ordered on all tbe issues.
New trial.
Walker and Brown, JJ., concur in tbe result.