HIGHWAYS-OBSTRUCTION-PRIVATE ACTION.-An Individual suffering special damage from the obstruction of a highway may have his action therefor, although the act is indictable: Thayer v. Boston, 19 Pick. 511; 31 Am. Dec. 157, and note. A private person can recover for obstruction to a public way, although it might also be a public nuisance, where the obstruction would constitute an invasion of his rights, causing special damage to him not common to others, for which an action would lie: Cole v. Sprowl, 35 Me. 161; 56 Am. Dec. 696, and note; Houck v. Wachter, 34 Md. 265; 6 Am. Rep. 332.

WATERCOURSES - OBSTRUCTION OF.-Bridges constructed over floatable streams, so as, by interposing a barrier to floating logs every time the streams rise sufficiently high to carry logs over the shoals, to practically prevent their use by the public, are nuisances and unlawful obstructions: Commissioners v. Catawba Lumber Co., 116 N. C. 731; 47 Am. St. Rep. 829, and note.

WATERCOURSES.-TO BE NAVIGABLE, a stream must have sufficient depth and width to float useful commerce, the test being navigable capacity, without regard to present use or whether the surroundings are such as to make it presently useful for commerce: Heyward v. Farmers' Min. Co., 42 S. C. 138, 46 Am. St. Rep. 702, and note with the cases collected.

NEW TRIAL-DAMAGES.-New trial may be granted solely upon the ground of error in instructions as to the amount of damages to which plaintiff is entitled, but the new trial thus granted is for inquiry into that subject alone: Pickett v. Wilmington etc. R. R. Co., 117 N. C. 616; post, p. 610.

PICKETT V. WILMINGTON & WELDON RAILROAD CO.

[117 NORTH CAROLINA, 616.]

NEGLIGENCE-PROXIMATE CAUSE.-If an original wrong only becomes injurious in consequence of the intervention of a distinct wrongful act or omission by another, the injury must be imputed to the last wrong as the proximate cause, and not to that which was more remote.

NEGLIGENCE-PROXIMATE CAUSE.-He who has the last clear chance to avert injury, notwithstanding the previous negligence of the injured party, is solely responsible for such injury resulting from his failure to exercise ordinary care.

NEGLIGENCE-PROXIMATE CAUSE.-When, by the exercise of ordinary care, a railway engineer can see that a human being is lying, apparently helpless, 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 exercise such ordinary care. Such failure is the proximate cause of the injury, although the party injured was originally guilty of negligence in getting upon the track.

TRIAL-FRAMING ISSUES-DISCRETION.-It is within the sound discretion of the trial court to frame the issues; and the complaining party must show that the exercise of such discretion operated to his injury before he can assign it as error on appeal.

NEGLIGENCE-PROXIMATE CAUSE-INSTRUCTIONS.-An Instruction that plaintiff's previous negligence is immaterial, if defendant's subsequent negligence was the proximate cause of the injury to plaintiff, is proper.

DAMAGES-MEASURE OF FOR NEGLIGENCE RESULTING IN DEATH.-The measure of damages for the loss of human life, resulting from negligence, is the present value of the net income, ascertained by deducting the cost of living, and expenditures, from the gross income; and no more can be allowed than the present value of accumulation arising from such net income, based upon the expectancy of life.

NEW TRIAL MAY BE GRANTED SOLELY upon the ground of error in instructions as to the amount of damages to which plaintiff is entitled, but the new trial thus granted is for inquiry into that subject alone.

Action to recover damages for the negligent killing of plaintiff's intestate, a boy seventeen years of age, by the defendant. Judgment for plaintiff. Defendant appealed.

W. R. Allen and H. L. Stevens, for the appellant.

A. D. Ward and N. J. Rouse, for the appellee.

628 AVERY, J. The most important question presented by the appeal is, whether the court erred in refusing to instruct the jury that if the plaintiff's intestate deliberately laid down upon the track, and either carelessly or intentionally fell asleep there, the defendant was not liable, unless the engineer actually saw that he was lying there in time, by the reasonable use of appliances at his command, to have stopped the train before it reached him. In the headnote to Smith v. Norfolk etc. R. R. Co., 114 N. C. 729, it seems that the intelligent reporter deduced from the opinion of the court the principle that while the mere going upon the track of a railroad is not contributory negligence, any injury subsequently inflicted by a collision with a passing train is deemed to be due to the carelessness of the person who goes upon it, unless it is shown that he looked and listened for its approach. While such an abstract proposition may be fairly drawn from the reasoning upon which the opinion is founded, the new trial was 629 in fact awarded because the court below refused to instruct the jury that if the plaintiff's intestate was drunk, though he was lying apparently helpless upon the track, the defendant was not liable, unless its engineer actually saw that he was in danger in time to avert the injury by reasonable care.

The learned counsel who argued this case for the defendant, without citing Smith v. Norfolk etc. R. R. Co., 114 N. C. 729, in support of his contention, obviously invoked the aid of the principle there decided, when he rested his argument upon the proposition that one who carelessly or purposely falls asleep on a railway track is not only negligent in exposing himself upon first going there, but, that although he afterward becomes utterly

unconscious, there is, in contemplation of law, a continuing carelessness on his part up to the moment of a collision, which is, concurrently with the fault of the defendant, a proximate cause of an ensuing injury, or operates to acquit the carrier of what would have been culpable carelessness and a causa causans, if the injury had been inflicted on a horse, a pig, a cow, or person rendered insensible in any manner than by drunkenness, or deliberately or carelessly falling asleep. So that we are again called upon to review Smith v. Norfolk etc. R. R. Co., 114 N. C. 729, and to determine whether we will modify the principle there laid down or extend its operation to other cases coming within the reason upon which it is founded.

The language of Judge Cooley, which is cited in Clark v. Wilmington etc. R. R. Co.,109 N. C. 449,is that "if the original wrong becomes injurious in consequence of the intervention of the distinct wrongful act or omission by another, the injury will be imputed to the last wrong which was the proximate cause, and not to that which was more remote.” If, in the case at bar, the plaintiff's intestate was in fault in lying down upon the track, and his carelessness 630 culminated in doing so, then it is clear that the engineer was in fault in failing to keep a proper lookout, if he could, by doing so, have seen the deceased in time, through the reasonable use of the appliances at his command, to have averted the injury, and his carelessness of course intervened after that of plaintiff's intestate. If he had looked and stopped the train, the collision would have been prevented, notwithstanding the previous want of care on the part of the boy who was killed. In Herring v. Wilmington etc. R. R. Co., 10 Ired. 402, 51 Am. Dec. 395, this court followed what was at the time the generally accepted doctrine, that persons who went upon railroad tracks at places other than public crossings were trespassers, to whom the carrier owed no duty of watchfulness, and for whose safety it was in nowise liable, unless its engineer actually saw that there was danger of injury from a collision and willfully refused to use means by which he could have averted it.

In Gunter v. Wicker, 85 N. C. 310, this court gave its sanction to the principle first distinctly formulated in Davies v. Mann, 10 Mees. & W. 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. New York etc. S. S. Co., 88 N. C. 123; 43 Am. Rep. 736; Turrentine v. Richmond etc. R. R. Co., 92 N. C. 638; Meredith v. Cranberry etc.

Iron Co., 99 N. C. 576; Roberts v. Richmond etc. R. R. Co., 88 N. C. 560; Farmer v. Wilmington etc. R. R. Co., 88 N. C. 564; Bullock v. Wilmington etc. R. R. Co., 105 N. C. 180; Wilson v. Norfolk etc. R. R. Co., 90 N. C. 69; Snowden v. Norfolk etc. R. R. Co., 95 N. C. 93; Carlton v. Wilmington etc. R. R. Co., 104 N. C. 365; Randall v. Richmond etc. R. R. Co., 104 N. C. 410; Bullock v. Wilmington etc. R. R. Co., 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 631 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.

It was after all of these precedents following Gunter v. Wicker, 85 N. C. 310, that the court, in Deans v. Wilmington etc. R. R. Co., 107 N. C. 686, 22 Am. St. Rep. 902, was confronted with the question whether a railway company was liable where, by ordinary care, its engineer could have stopped its train in time to prevent its running over a man lying asleep upon its track, under the doctrine of Gunter v. Wicker, 85 N. C. 310, or whether, the accident having occurred at a place other than a public crossing, the company could be held answerable, under the rule as stated in Herring v. Wilmington etc. R. R. Co., 10 Ired. 402, 51 Am. Dec. 395, only where it was shown that the engineer actually saw the trespasser and had reasonable ground to comprehend his condition. Upon mature consideration, the court overruled Herring v. Wilmington etc. R. R. Co., 10 Ired. 402, 51 Am. Dec. 395, and stated the rule applicable in such cases to be that "if the engineer discover, or by reasonable watchfulness may discover, a person lying on the track asleep or drunk, or see a human being, who is known by him to be insane or otherwise insensible to danger or unable to avoid it, upon the track in his front, it is his duty to resolve all doubts in favor of the preservation of human life and immediately use every available means, short of imperiling the lives of passengers on his train, to stop it." This rule was approved in express terms in Meredith v. Richmond etc. R. R. Co., 108 N. C. 616; Hinkle v. Richmond etc. R. R. Co., 109 N. C. 472; 26.Am. St. Rep. 581; Clark v. Wilmington etc. R. R. Co., 109 N. C. 444, 445; Norwood v. Raleigh etc. R. R. Co., 111 N. C. 236; Cawfield v. Asheville etc. Ry. Co., 111 N. C. 597.

In Smith v. Norfolk etc. R. R. Co., 114 N.C. 729, the same questions were again presented, and this court was asked to overrule the doctrine 632 of Deans v. Wilmington etc. R. R. Co., 107 N. C. 686, 22 Am. St. Rep. 902, and reinstate Herring v. Wilmington etc. R. R. Co.,10 Ired. 402, 51 Am. Dec. 395, as authority. The court declined to overrule Deans v. Wilmington etc. R. R. Co., 107 N. C. 686, 22 Am. St Rep. 902, and others which had followed it, but held that, in so far as the opinions purported to bring within the protection of the rule a person who is lying upon the track in an insensible state brought about by drunkenness, they were entitled only to the weight of dicta. No member of the court adopted this particular view but the chief justice who delivered the leading opinion. The other members of the court were either in favor of sustaining without any modification or of overruling in toto the principles as enunciated in Deans v. Wilmington etc. R. R. Co., 107 N. C. 686, 22 Am. St. Rep. 902. The learned counsel for the defendant now contends that one who deliberately incurs the risk of lying down upon the track is no more entitled to the protection of the law than a drunken person, and that where he is killed his personal representative cannot invoke the benefit of the rule which subserves the purpose of shielding even brutes from the same unnecessary peril. At common law, in England, the owner of cattle was required to keep them in or restrain them from trespassing on the lands of others: 2 Shearman and Redfield on Negligence, secs. 418, 626, 627. But in this country the rule has been either modified by statute, or, in a much larger number of states, entirely disregarded, because the reason upon which it was founded, under different conditions, had ceased to operate: 2 Shearman and Redfield on Negligence, secs. 419-422. The principle deduced from Davies v. Mann, 10 Mees. & W. 545, as is said by discriminating law-writers, is that "the party who has the last clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it": 2 Shearman and Redfield on Negligence, 165. This rule has now been adopted in almost all of the southern and western states. but has been construed in some of them and by a number of text-writers as applying to 633 injuries done by moving trains only, where the engineer actually sees an animal or person. But this court, soon after adopting the rule laid down in Davies v. Mann, 10 Mees. & W. 545 (in Gunter v. Wicker, 85 N. C. 310), construed in its application to animals in Wilson v. Norfolk etc. R. R. Co., 90 N. C. 69, followed by Snowden v. Norfolk etc. R.