The opinion
Clark, C. J., dissenting:
Two sections of The Code, 2615 and 3800, forbade the defendant to use the summer car (which has no wind shields) at the time it did — in December — and the latter section made it a misdemeanor.
In Leathers v. Tobacco Co., 144 N. C., 330 , this Court expressly repudiated the doctrine that the violation of a statute *696 was merely “evidence of negligence,” and beld that such conduct was “negligence per se,” Connor, J., pp. 345-348, citing a wealth of authorities to that effect. He thus summed up: “Upon careful consideration, we conclude that the law is correctly laid down by Judge Thompson, and the other authors quoted, and is sustained by the best-considered cases.” That case was well considered and is based upon numerous authorities of great weight. A due consideration for the dignity and consistency of our own decisions requires that we adhere to what was there said, after so great deliberation. Even if an unlawful act is only evidence of negligence, that would entitle the plaintiff,to have the injury committed in the perpetration of the unlawful act submitted to the jury.
If one is engaged in an unlawful act and unintentionally or accidentally slays another, he is not absolved from responsibility, but it is manslaughter. S. v. Vines, 93 N. C., 493 ; S. v. Hall, 132 N. S., 1107. If one while engaged in doing an unlawful act injures another, he is certainly liable for damages. The defendant was violating the law and in the commission of a misdemeanor in running the car. The injury to the plaintiff could not possibly have occurred if the defendant had not disobeyed the statute. There was no evidence of contributory negligence (though the burden to prove that was upon the defendant)) and it was necessarily error to withdraw the case from the jury.
Aside from the statute, it was negligence for the defendant in midwinter, with the temperature down to freezing and a strong wind- blowing from the north, cloudy and “spitting-snow,” to refuse the plaintiff’s request for a closed or winter car, of which there were three, at least, idle under the shed ready for use. It was in violation of the ordinary dictates of humanity, as well as of the statute, to require the plaintiff to take instead an open summer car in such weather on a run of three miles out beyond the city limits and back. The plaintiff, in the regular winter car which could and should have been given him as he requested, would have been protected in the aisle from the weather, while collecting the fares, and could not have slipped and been hurt. As it.was, the curtains being let down to protect the passengers, the plaintiff was obliged to dodge along, under one curtain after another, which he had to lift so that he could collect the fares. While doing this he had to walk along the running-board, which was slippery, for it was “spitting snow,” and his hands being numb with cold and the strong north wind blowing the curtains, his hands slipped when trying to raise a curtain which was “caught.” The plaintiff in consequence fell off the running-board and was hurt.
*697 Tbe facts not being denied, and the law fixing the defendant with negligence, the judge might well have held as a matter of law that such negligence was the proximate c^use of the injury. Certainly, he should not have denied the plaintiff the right to have a jury pass on the question. The .exposure by the defendant to such weather, unnecessarily and over his protest, was more than negligence. It, was inhumane. The statute made the conduct of the company a misdemeanor, even if no harm had accrued to the plaintiff.
The plaintiff, in my judgment, has a right to have a jury, instead of the judge, to pass upon his issues. Employees are entitled to protection from such heedless disregard of their comfort and safety as was shown on this occasion, and are surely entitled to recover for injuries which a jury shall find were sustained from such cause.