exhausted. It evident an PPEAL by defendant from a judgment appropriation by law for the salary of the A of the Superior Court for dement Statement by Walker, J.: chairman of the commission because the County in plaintiff's favor in an action amount and time and manner of payment brought to recover damages for personal inare specific and certain; but not so in re-juries alleged to have been caused by degard to the traveling expenses. If the sec- fendant's negligence. Reversed. tion relating to the duties of the comptroller is in conflict, which is not apparent, it would be controlled by the later acts fixing the salary of the petitioner as a state officer and directing the comptroller to draw his warrants in favor of state officers for their salaries on the first of each month. Submission of the case was made upon demurrer as upon the merits. It is directed that a writ of mandate issue commanding the defendant, as state comptroller, to draw his warrant upon the state treasurer in favor of the plaintiff for the salary claimed, but not for the traveling expenses. The plaintiff alleges and introduced evidence to prove that he was walking along and near the track of the defendant company in the town of Highland, just below and east of Hickory, when he was struck and badly injured by an engine pulling a train of the defendant, which was running, six hours late, at a high rate of speed. There was evidence in the case tending to show the following facts: That the plaintiff was using the track of the defendant for his own convenience as a walkway, and when he saw the train approaching him he stepped from the track, but, not having reached a place of safety in time, he was struck by the engine and injured. The headlight of the engine had been extinguished, and the engineer gave no signal of the approach of his engine. Five hundred yards west of Highland there was a crossing used by the employees of a furniture factory and even by the public generally, and 250 yards still further west there was a street crossing within the corporate limits of Hickory. By reason of the darkness, it being midnight, and the absence of a headlight, the plaintiff could not see the engine as it came towards him. No signals by bell or whistle were given at the crossings. There was other evidence that tended to show that there was a headlight, and that, without one, the train could be seen by the plaintiff or anyone on the track a sufficient distance pose aimed at in requiring that the whistle failure would not constitute negligence, if | operated that it cannot be seen or heard in you should find there was such failure." This instruction was given, but with this addition: "Unless you shall find from the evidence that the engine had no headlight." There was a verdict and judgment for the plaintiff, and the defendant appealed. Mr. S. J. Ervin, for appellant: It was error to admit evidence of failure to give signals at six crossings. time for persons on the track, not at a crossing, to escape therefrom and avoid injury, then the defendant's engineers should give such signal by bell or whistle, and sometimes perhaps by both, as may be reasonably sufficient to warn persons on the track of the approach of the train. Edwards v. Atlantic Coast Line R. Co. 132 N. C. 99, 43 S. E. 585. The duty of the railroad company is to Stewart v. North Carolina R. Co. 136 give reasonable and proper warnings for N. C. 386, 48 S. E. 793. When the plaintiff put himself in the way of the moving engine and train and was injured by it, his negligence was at least a contributory cause of the injury sustained. McAdoo v. Richmond & D. R. Co. 105 N. C. 140, 11 S. E. 316; Norwood v. Raleigh & G. R. Co. 111 N. C. 236, 16 S. E. 4; Pickett v. Wilmington & W. R. Co. 117 N. C. 616, 30 L.R.A. 257, 53 Am. St. Rep. 611, 23 S. E. 264; Lloyd v. Albemarle & R. R. Co. 118 N. C. 1010, 54 Am. St. Rep. 764, 24 S. E. 805; Meredith v. Richmond & D. R. Co. 108 N. C. 616, 13 S. E. 137; High v. Carolina C. R. Co. 112 N. C. 385, 17 S. E. 79; Bessent v. Southern R. Co. 132 N. C. 934, 44 S. E. 648; Daily v. Richmond & D. R. Co. 106 N. C. 301, 11 S. E. 320; Stewart v. North Carolina R. Co. 136 N. C. 386, 48 S. E. 793. Messrs. A. A. Whitener and W. A. Self, for appellee: It is the duty of the engineer or fireman to ring the bell or sound the whistle or give warning otherwise of the approach of a train at a public crossing; and especially is this true when the train is moving in the yards or in the corporate limits of cities and towns. the protection of travelers on a highway may be said to have the right to presume that this duty will be performed; but this does when trains are approaching, and a traveler not discharge him from the duty to exercise care for his own safety. If the defendant fails to give such signals as the circumstances reasonably require to warn a traveler on a highway which crosses the track, and the latter is injured by reason thereof, and has not proximately contributed to his own injury by failing to look and listen, or, in other words, to exercise the care of a prudent man, there is actionable negligence, and he may recover for the injury. The warning should, of course, be given at a sufficient distance to be effectual for the purpose intended. 9 Am. & Eng. Enc. Law, p. 413. The omission to give the signal at a crossing does not, as we have stated, relieve the traveler on the highway of the duty, as a prudent man, to look and to listen. Cooper v. North Carolina R. Co. 140 N. C. 209, 3 L.R.A. (N.S.) 391, 52 S. E. 932. "Both parties are charged with the mutual duty of keeping a careful lookout for danger, and the degree of diligence to be exercised on either side is such as a prudent man Edwards v. Carolina & N. W. R. Co. 140 would exercise, under the circumstances of N. C. 50, 52 S. E. 234. the case, in endeavoring fairly to perform Failure to have a headlight rendered it his duty." Continental Improv. Co. v. Stead, incumbent on defendant's servants to give 95 U. S. 161, 24 L. ed. 403. But it is held, crossing signals. we think, by the great weight of auReid v. Atlanta & C. Air Line R. Co. 140 thority, that the duty to give signals near N. C. 149, 52 S. E. 307. crossings of the approach of trains does not exist in favor of persons walking along the as Walker, J., delivered the opinion of the track, or parallel with and dangerously near court: the same, when such pedestrians are on or near the track between the crossings, and the failure to give crossing signals as to them is not negligence per se, but is only evidence of negligence in proper cases. The principle will be found stated with clearness in 8 Am. & Eng. Enc. Law, pp. 409, 410, the cases being collected in the notes. A person walking on a railroad track, or so near thereto as to be in danger of being The defendant excepted to the amendment of the instruction, and insisted that it should have been given as it was asked. In this view we concur, and think the judge erred in so modifying the instruction as to make its application to the case depend upon the presence of a headlight. It was clearly the duty of the defendant to run its train in a prudent manner and with such appliances, which are approved and in gen-stricken by a passing train, cannot complain eral use, such as a headlight, as will enable persons on its track to know of the approach of the train, if they exercise due care by looking and listening. If the train is so of any breach of duty which the railroad company did not owe to him. Travelers on a highway which crosses a railroad track have the right to use the highway, and are therefore entitled to notice of the approach | order to a recovery for negligence it is not of trains to the crossing; but pedestrians sufficient to show that the defendant has using the track as a walkway cannot claim neglected some duty or obligation existing that the same duty of giving warning near at common law or imposed by statute, but crossings is due to them, for they are not it must be shown that the defendant has using the highway. Randall v. Baltimore neglected a duty or obligation which it owes & O. R. Co. 109 U. S. 478, 27 L. ed. 1003, to him who claims damages for the neglect. 3 Sup. Ct. Rep. 322. But the fact that The duty of railroad companies to ring a no such warning was given, while not neg- bell or sound a whistle on a train approachligence per se as to the pedestrian using ing a highway crossing is intended for the the track for his own convenience, may be benefit or protection of travelers upon the evidence of negligence as to him in the op- public highways and passengers upon the eration of the train, when it is run in the passing train, and the place indicated is the nighttime without a headlight and prudence intersection of a railroad with a public requires a warning to be given. highway." It may be tersely expressed thus: If the defendant owes a duty, but does not owe it to the plaintiff, the action will not lie in favor of the plaintiff, even if there is a breach of the duty. Shearm. & Redf. Neg. 4th ed. § 8; Bishop, Non-Contract Law, § 446. Reid v. Atlanta & C. Air Line R. Co. 140 N. C. 146, 52 S. E. 307, which was cited by the plaintiff's counsel in support of their contention, is not in point, as there the injured person was on the highway or street, where she had the right to be. In Fulp v. Roanoke & S. R. Co. 120 N. C. 525, 27 S. E. 74, there was a nonsuit, and it would have been correct to hold that the failure to give the proper signals for the crossing was evidence of negligence; but, in fact, the decision turned upon an erroneous instruction that, if a signal given at the usually safe distance would not have aroused the plaintiff's intestate, who was lying drunk upon the track, there was no negligence; which excluded from the con There was evidence in this case that the plaintiff, when he was injured, was where people in the vicinity were accustomed to walk, and, under the circumstances, he was entitled to notice of the approach of the train, if there was no headlight and it was so dark that he could not see it in time to leave the track. Purnell v. Raleigh & G. R. Co. 122 N. C. 832, 29 S. E. 953; Heavener v. North Carolina R. Co. 141 N. C. 245, 53 S. E. 513; Mcllhaney v. Southern R. Co. 122 N. C. 995, 30 S. E. 127; Lloyd v. Albemarle & R. R. Co. 118 N. C. 1010, 54 Am. St. Rep. 764, 24 S. E. 805. He alleged that no warning by bell or whistle was heard by him, and the fact that there was no signal given for the crossings, if such was the fact, is some evidence to be considered by the jury as to whether the train was carefully operated at the time of the injury, and as to whether proper warning was given to him of the approach of the train, though it was not conclusive upon the question of negli-sideration of the jury the duty of the degence, so as to justify an instruction from the court clearly implying that, if there was no headlight on the engine, it was negli gence not to give the usual signals for the crossings. If the plaintiff was a mere trespasser on the track, using it for his own convenience, or without any license or per-jured party was attempting to cross the mission of the company, express or implied, he certainly is not entitled to rely on a crossing signal, as the company owed no duty to him other than to enable him, by its careful operation of the train with respect to the place where he was hurt, to escape danger. Its failure to have a headlight so that he could see the train as it approached was negligence as to him. If he actually saw the train, or heard it as it approached him, and failed to clear the track, if he had reasonable time to do so, he was guilty of negligence which defeats his recovery. The doctrine is thus stated in Williams v. Chicago & A. R. Co. 135 Ill. 491, 11 L.R.A. 352, 25 Am. St. Rep. 397, 26 N. E. 661: "In fendant to avail itself of the last clear chance to save the life of the intestate. In other cases where it has been held that a failure to give the proper signal of the approach of a train to a crossing is negligence it will be found either that the in track on a public highway, or that there were other facts and circumstances which actually controlled the decision of the court, without necessarily involving the principle herein discussed. Stewart v. North Carolina R. Co. 136 N. C. 385, 48 S. E. 793, is the only case where any very clear intimation as to the law upon this question is given, and it was in favor of the view we take in this case. If the plaintiff was where he had the right to be when he was injured, it may be that the conduct of the defendant in operating its train constituted actionable negligence, within the principle laid down in Reid v. Atlanta & C. Air Line R. Co. supra, NORTH CAROLINA SUPREME COURT. CHARLES S. BROWN, Appt., (— N. C. —, 60 S. E. 985.) and the cases therein cited, and also in Heavener v. North Carolina R. Co. supra. But we are unable to say upon what theory or under which part of the charge of the court the verdict was based, and therefore error in any one of the instructions, which may have ATLANTIC influenced the jury, entitles the defendant to a new trial. Tillett v. Lynchburg & D. R. Co. 115 N. C. 663, 20 S. E. 480; Williams v. Haid, 118 N. C. 481, 24 S. E. 217; Edwards v. Atlantic Coast Line R. Co. 132 N. C. 99, 43 S. E. 585. The cases we have cited relate to conflicting instructions; but the principles upon which they were decided apply with equal force to a case of this kind, when it is impossible to determine upon which of the instructions the jury proceeded in finding their verdict. New trial. Clark, Ch. J., dissenting: The defendant's train was running at night, six hours late, and at a high rate of speed. The instruction, as modified by the judge, is that, if the engine was running under such circumstances without a headlight, it was negligence not to give notice to plaintiff on the track of the approach of the train or engine by either sounding the whistle or ringing the bell at the highway crossing west of the point where the plaintiff was struck; otherwise; if there was a headlight. Even though the plaintiff was on the track, he was surely entitled to some notice of the approach of the train. In Willis v. Atlantic & D. R. Co. 122 N. C. 905, 29 S. E. 941, Powell v. Southern R. Co. 125 N. C. 374, 34 S. E. 530, and Hord v. Southern R. Co. 129 N. C. 306, 40 S. E. 69, it was held negligence not to give one on the track notice by blowing the whistle or ringing the bell at the customary places. Here, at the request of defendant, the court charged the opposite of this, and that failure to blow the whistle or ring the bell at the crossing was not negligence as to the plaintiff, unless the defendant was running its engine without a headlight. The court might well have told the jury that running a train at night, six hours out of schedule, and at a high rate of speed without a headlight, was negligence. The absence of a headlight, when dark enough, is always held negligence. Willis v. Atlantic & D. R. Co. supra. It was in the defendant's favor that the court below held that the absence of a headlight under such circumstances could be supplied by giving the customary signals at the crossing near by. There is no error of which the defendant can complain. The jury found there was no contributory negligence. Limitation of action—right to advantage of statute. A mere request by defendant not to sue, without any contract, promise to pay, or agreement not to plead the statute of limitations, will not prevent him from taking advantage of such statute. (March 25, 1908.) Case Note. Effect on running of statute of limitations of request not to sue or agreement not to plead the statute. The earlier cases upon estoppel to plead defense of limitations are collected and discussed in a note to Chesapeake & N. R. Co. As is there v. Speakman, 63 L.R.A. 193. shown, the general rule is that a debtor may, by an agreement, either written or oral, waive the statute of limitations, and he will be estopped from pleading the stat ute as a defense if the creditor, relying upon such agreement, permits the statutory period to expire before bringing suit. There is greater difficulty experienced, however, where the acts or words of the debtor do not amount to a full or express agreement. But it appears to be the general rule that a debtor may, although not expressly waiving the statute, be estopped from pleading it as a defense by conduct inducing the creditor to forego his right and delay bringing suit until after the period of limitation. There is some difference of opinion as to just what acts or words, not amounting to an express agree. ment, will be considered sufficient to estop the debtor, and it would obviously be impossible to formulate a general rule sufA mere request not ficient for every case. to sue, however, is generally held insufficient. There must be, in addition to the request, something in the nature of consideration for the delay. In BROWN V. ATLANTIC COAST LINE R. Co. the court found that there was no agreement, express or implied, on the part of the defendant, not to plead the statute; and the mere request not to sue, coupled with statements about adjusting the matter without suit, was not sufficient to estop the defendant from pleading the statute, especially as there was no promise on the part of plaintiff not to sue, which could be deemed the consideration of an agreement to waive the statute. Cases involving this question are not numerous, and there ap pears to be no other among the more recent cases. Several of the earlier cases are to APPEAL by plaintiff from a judgment of 18 N. C. 124. 24 Am. Rep. 460; Taylor v. the Superior Court for Cumberland County in defendant's favor in an action brought to recover damages for assault. Affirmed. The facts are stated in the opinion. Mr. Thomas H. Sutton, for appellant: Defendant is estopped from pleading the statute of limitations. Haymore v. Yadkin County, 85 N. C. 268; Joyner v. Massey, 97 N. C. 148, 1 S. E. 702; Clark's Code, 3d ed. § 172, p. 95; Daniel v. Edgecombe County, 74 N. C. 494; Barcroft v. Roberts, 91 N. C. 363; Cecil v. Henderson, 121 N. C. 244, 28 S. E. 481. The statute of limitations will not be allowed when the delay, which would otherwise give operation to the statute, has been induced by the request of the defendant, expressing or implying his agreement not to plead it. Lyon v. Lyon, 43 N. C. (8 Ired. Eq.) 201; Haymore v. Yadkin County; Joyner v. Massey; and Cecil v. Henderson,-supra; Palmer v. Gillespie, 95 Pa. 340, 40 Am. Rep. 657. The promise made to the plaintiff's at torney was sufficient. High, Inj. § 72; Story, Eq. Jur. § 1521; Barcroft v. Roberts, supra; Kirby v. Mills, be found in the opinion in BROWN V. ATLANTIC COAST LINE R. Co. The later cases upon the effect of an agreement not to plead the statute follow the general rule as set out above, and hold that the statute of limitations may be waived, and a defendant who agrees not to plead the statute will be deemed estopped to plead. Thus, in Missouri, K. & T. R. Co. v. Pratt, 73 Kan. 210, 85 Pac. 141, in an action for damages for the breach of a covenant of warranty in a conveyance of real estate, it appeared that, at the time of the delivery of a deed containing a covenant of warranty, litigation was pending between the grantor and a third person who claimed to hold under a title paramount to that of the grantor. The grantor, however, by assurance that his title would ultimately be established, and, if not, that the money would be refunded, induced the grantee to wait until the end of the litigation, which, however, was not ended until long after the time embraced by the statute of limitations, within which a suit upon the covenant of warranty might have been brought, had expired. The litigation was finally determined adversely to the grantor, and the grantee brought suit upon the covenant of warranty, and it was held that the defendant was estopped from maintaining the defense of the statute of limitations by his conduct. So also, in Lyndon Sav. Bank v. International Co. 78 Vt. 169, 112 Am. St. Rep. 900, 62 Atl. 50, it was held that it is competent for the maker of a promissory note Miller, 113 N. C. 340, 18 S. E. 504. To prevent the statute being a bar, there must be an agreement express or implied, on the part of the debtor, that he will not plead the statute. Hill v. Hilliard, 103 N. C. 34, 9 S. E. 639; Cecil v. Henderson, 121 N. C. 248, 28 S. E. 481; Raby v. Stuman, 127 N. C. 463, 37 S. E. 476; Clark's Code, 3d ed. p. 95. Clark, Ch. J., delivered the opinion of the court: Action begun June 4, 1906, to recover damages for an assault committed September 19, 1904. To rebut the plea of the statute of limitations (Revisal 1905, § 397, subd. 3) the plaintiff relies upon evidence that the deceased attorney or claim agent "orally requested plaintiff's attorney not to bring suit, that he would give the matter his special attention and try to adjust it in some way," and that "the matter would be settled without suit being brought;" and later in the summer of 1905 "requested plaintiff's attorney not to bring suit, to leave matter open still further, and said we can adjust claim without suit." Four letters to stipulate therein that he will waive the statute of limitations. And in Moore v. Taylor, 2 Tenn. Ch. App. 556, it was held that a waiver of the operation of the statute of limitations, indorsed upon the back of a promissory note, waived only the rights that had accrued up to the time of the waiver, and, in legal effect, was simply a renewal or promise to pay the note; and that suit must be brought within six years from this indorsement, or the bar to the action would be complete. The court further said: "We are further of the opinion that a contract to permanently waive the operation of the statute of limitation would be contrary to public policy and void." In Monroe v. Herrington, 110 Mo. App. 509, 85 S. W. 1002, it was held that an agreement not to plead the statute of limitations against a debt was neither an acknowledgment of the debt nor a promise to pay it, but a distinct and separate contract on the part of the debtor, and, to be valid, need not be in writing, under the Missouri statute; but a verbal promise by an indorser to pay the balance remaining on a note after the estate of the maker had been settled. was not an agreement not to plead the statute of limitations, and was invalid because not in writing, under the section of the limitation act which provided that no acknowledgment or promise should be evidence of a new and continuing contract, whereby to take a case out of the operation of the statute of limitations, or deprive a party of its benefits, unless the acknowl edgment or promise were in writing. |