(105 S.E.) citations to that case in Anno. Ed. and Jones | good character, but all of them except one v. Jones, 173 N. C. 285, 91 S. E. 960, and cas- referred to her character when she was a es there cited. young woman. Upon the hearing his honor made the following order: A wife engaged in household duties, bearing and rearing children, and being often the cook for the family also, receives no wages, and has no opportunity for gainful occupation, and hence it is elemental justice that she be allowed a reasonable sum for counsel fees and court costs to enable her "to present her side in court," which has always been allowed by the courts, and also the statute now provides alimony pendente lite when she has not sufficient property of her own, so that she may not starve while having the merits of her alleged wrongs investigated by a judge and jury. Especially should she be so allowed when, as the judge found as facts in this case, the husband has stripped her of a home, locked up the provisions, household and kitchen furniture, and by his recriminatory charg es seeks to blast the character utterly of the mother of his six children. Whether his charges are true or not only a jury can decide, and she should have a "square deal" to defend herself by an allowance for counsel fees and subsistence till the facts are determined. This is what the Acts of 1852 and 1919, supra, now C. S. 1666, 1667, provide. "This cause coming on to be heard before his honor, J. Bis Ray, judge presiding, Eleventh judicial district, and being heard upon allegations of the complaint, answer, and affidavits, and after argument of counsel, the court finds as a fact that upon the allegations of the complaint and the proof the plaintiff would be entitled to a divorce from bed and board, and is entitled to alimony pendente lite and attorney's fees. It is therefore ordered that the defendant secure to the plaintiff $75 as alimony until further order of the court and $250 attorney's fees in addition to the alimony herein allowed. This the 17th day of May, 1920. "J. Bis Ray, Judge Presiding." The defendant excepted and appealed. In actions for divorce from the bonds of matrimony or from bed and board if the wife "shall set forth in her complaint such facts, which upon application for alimony shall be found by the judge to be true and to entitle her to the relief demanded in the complaint, and it shall appear to the judge of such court, either in or out of term, by the affidavit of the complainant, or other proof, that she has not sufficient means whereof to subsist during the prosecution of the suit, and to defray the necessary and proper expenses thereof, the judge may order the husband to pay her such alimony during the pendency of the suit as shall appear to him just and proper, having regard to the circumstances of the parties." Revisal, § 1566. "The judge must find the essential and issuable facts and set them out in detail so that his court can determine from the facts as found whether the order for alimony can be upheld as * These the correct legal conclusion. not finally conclusive on the parties, nor refindings and the order predicated thereon are ceivable in evidence on the trial of the issues before the jury, unless modified on further notice and hearing, they are conclusive for the purposes of the motion, and, operating as they do presently to deprive a defendant of his property, they should be decided and set out in conclusive form and in such detail that the appellate court, as stated, may be able to determine whether they justify the order made." Easeley v. Easeley, 173 N. C. 531, 92 S. E. 353. ALLEN, J. (dissenting). This is an action by the wife against the husband for support without divorce, brought under section 1567 of the Revisal as amended by chapter 24 of the Laws of 1919. After the action was commenced the plaintiff moved upon notice for an order for support and counsel fees, which motion was supported by the affidavit of the plaintiff, alleging various acts of cruelty and mistreatment, failure of support by the defendant, and abandonment. At the time when the motion was returnable the defendant was not able to be present, and upon request the motion was continued to a future date, the judge requiring the defendant to pay $200 to the plaintiff, which was done, and in this order there are certain recitals which will be hereafter referred to. Afterwards the husband appeared and filed an affidavit in which he denied all of the material allegations in the affidavit of the plaintiff, and particularly that he had separated himself from his wife, and, on the contrary, alleged that she had abandoned her home. He also alleged that the plaintiff had been cruel and abusive in her treatment of him, that she had refused to attend to the duties of the home, and that she was guilty of acts of infidelity. He also introduced supporting affidavits from a number of citizens, showing that he had been kind and considerate; that he was a man of good character, and that the plaintiff was a woman of bad character; that he had provided for his wife and children; and that she had If, however, the action was for support abandoned him. There were also six affida- alone, and not for divorce (Revisal, § 1567), vits supporting the charge of infidelity. The which is the action now before us, no order plaintiff introduced five affidavits as to her for alimony pendente lite could be made prior It was held in the Easeley Case that a finding by the judge that the "plaintiff had made out a prima facie case on the issue of abandonment" was insufficient to support an order for alimony, and that the judge must "find and set out the relevant facts." The finding in this case that "upon the allegations of the complaint and the proof the plaintiff would be entitled to a divorce from bed and board" is not more specific than the one condemned in the Easeley Case. to chapter 24, Laws of 1919. es, 82 N. C. 122, approved in 175 N. C. 171, 95 S. E. 149. In the latter action the only issuable facts were: Hodges v. Hodg-dered, but it does perinit the judge to make Crews v. Crews, an order for subsistence of the wife and children during the pendency of the action, thus conforming the procedure to applications for alimony pendente lite in actions for divorce, and, as on such applications, the materiai facts of marriage and separation by the husband must be found by the judge as a basis for his order, which findings are not conclusive on the parties, nor receivable in evidence on the trial of the issues before the jury. "(1) As to whether the marriage relation existed at the time of the institution of the proceeding; (2) whether the husband separated himself from his wife" -and the reasons and excuses of the husband for the separation were irrevelant, the court holding that the husband could not defeat the action for support by proof of the infidelity of the wife, but must wait and seek his remedy in an action for divorce when, if successful, he would be relieved of the order for support, which was not final. If the marriage and separation of the husband were admitted, the judge made the order for support after hearing both parties, but if either was denied no order could be made until the controverted fact was settled by a jury. These principles are discussed and settled in Skittletharpe v. Skittletharpe, 130 N. C. 72, 40 S. E. 851; Hooper v. Hooper, 164 N. C. 2, 80 S. E. 64; Crews v. Crews, 175 N. C. 171, 95 S. E. 149. In 1919 (chapter 24, Laws 1919) the statute permitting actions for support without divorce was changed very materially by substituting the following for section 1567 of the Revisal: "If any husband shall separate himself from his wife and fail to provide her and the children of the marriage with the necessary subsistence according to his means and condition in life, or if he shall be a drunkard or spendthrift, or be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board, the wife may institute an action in the superior court of the county in which the cause of action arose to have a reasonable subsistence allotted and paid or secured to her from the estate or earnings of her husband. Pending the trial and final determination of the issues involved in such action, and also after they are determined, if finally determined, in favor of the wife, such wife may make application to the resident judge of the superior court, or the judge holding the superior court of the district in which the action was brought, for an allowance for such subsistence, and it shall be lawful for such judge to cause the husband to secure so much of his estate or to pay so much of his earnings, or both, as may be proper, according to his condition and circumstances, for the benefit of his said wife and the children of the marriage, having regard also to the separate estate of the wife: Provided, that no order for such allowance shall be made unless the husband shall have had five days' notice thereof. Such application may be heard in or out of term, orally or upon affidavit, or either or both." (Certain parts not material omitted.) The statute does not change the issuable facts in actions for support, nor does it affect the principle that these must be passed There is, however, a marked difference in the order which may be made in actions for divorce and in those for support. In the first, when the wife makes it appear "that she has not sufficient means whereon to subsist during the prosecution of the suit, and to defray the necessary and proper expenses thereof the judge may order the husband to pay her such alimony during the pendency of the suit, etc," and such alimony includes counsel fees, but in the second, under the Act of 1919, the application is for an allowance for subsistence alone, without reference to the expenses of suit, alimony is not mentioned, and the order is for subsistence for the benefit of the wife and children. When the act of 1919 was adopted the General Assembly knew that in actions for divorce the wife must show that she did not have sufficient means to defray the expenses of suit, and that authority to order alimony included counsel fees. It was also known that in actions for support no order for subsistence or counsel fees could be made pendente lite, and, with a knowledge of these facts, having restricted the amendatory act to subsistence, we cannot extend its meaning to include the fees of an attorney, when the General Assembly has declined to do so. Applying these principles, the order appealed from should, I think, be set aside, because it allows attorney's fees in an action for support, which is without authority of law, and there is no finding of fact, although the answer of the defendant denies that he has separated from the plaintiff, and, on the contrary, alleges that the plaintiff has willfully abandoned him, which, if true, would not come within the meaning of the statute, which allows an order to be made if the husband "shall separate himself from his wife." It is true it is recited in a prior order that the defendant had left the plaintiff, which might be sufficient but the order from which the appeal is taken does not purport to be based on that order, which was made before the answer was filed, and before the defendant had been heard on a motion for a continuance, "without prejudice to the rights of either party upon the final hearing," and the recitals were for the purposes of the former order and should have no bearing on this appeal. As I understand the record the material fact that the defendant has separated himself (105 S.E.) apart, has not been made, and without such This is an action to recover damages by finding no order for support or counsel fees the plaintiff for injuries sustained by him should be sustained. in consequence of the alleged negligence of the defendant. The defendant denies negligence and pleads contributory negligence. WALKER, J., concurs in this opinion. (180 N. C. 413) LEE v. SOUTHERN RY. CO. (No. 363.) (Supreme Court of North Carolina. Nov. 24, 1920.) 1. Trial 244 (4) Instructions should not 2. Appeal and error 1064(1)-No prejudice in instructions on issue shown as matter of law. If it was error for the court in its instructions to single out particular facts as the basis for separate instructions on contributory negligence, that error was not prejudicial to plaintiff, where the evidence showed he was negligent as a matter of law. 3. Railroads 327(1)—Failure to look and listen contributory negligence. One who voluntarily goes on a railroad track where the view is unobstructed and fails to look and listen for an approaching train cannot recover damages for an injury which could have been avoided if he had looked and listened. 4. Railroads 350 (22)-Contributory negligence in failing to look and listen question for jury. The duty of one to look and listen for an approaching train before going on a railroad track may be qualified by obstruction to the view, by diversion of attention elsewhere, or by other circumstances, and when these appear the question of contributory negligence is ordinarily for the jury. 5. Railroads 328 (9) Crossing track obscured by smoke held contributory negligence. The obstruction to view of train by smoke from a train which had just passed is so temporary that its existence does not excuse the failure to wait until a view was possible, unless there was urgent reason for haste, so that one whose testimony showed that he attempted to cross a track while his view was so obscured by smoke was contributorily negligent as a matter of law. In the southern part of the town of Reidsville, the defendant had and maintained, at the date in question, three tracks only a few feet apart, all of which are parallel and run practically north and south. The easternmost track is the main line going north. The one just west of and next to that is the main line going south, and the third one on the west is an industrial or side track. The injury complained of was sustained practically in front of the office of the Edna Cotton Mill. At this point and some distance north and south there is a public highway just west of and adjacent to the roadbed of the defendant, and another public highway just east of and adjacent to defendant's roadbed; both highways paralleling the defendant's tracks. In front of the office of the Edna Cotton Mill, which is on the west side of the defendant's tracks, the defendant's tracks are on an embankment some three feet high; on the east the defendant's road is practically level with the public highway. Some 75 yards north of the place of the collision between defendant's train and plaintiff, a public highway crosses the defendant's tracks, and some 100 yards south of the point of injury there is another highway crossing defendant's tracks. In front of the office of the Edna Cotton Mills, there are wooden steps, leading from the public highway to and upon defendant's roadbed. These steps had been maintained for more than 10 years, and they had been renewed in the meantime one or more times, and over these steps and across defendant's three tracks many persons were accustomed to go every 24 hours, east and west as occasion offered. On the day in question, to wit, the 11th day of August, 1917, the plaintiff, being on the west side of the defendant's tracks near the point of the injury, had occasion to go across said tracks to a store on the east side. That he approached the defendant's roadbed and tracks at a point some distance north of the steps above referred to. That on the defendant's roadbed or embankment there was a path running north and south. That there was a string of freight cars standing on the side track above referred to, and, in consequence of the presence of these cars, the plaintiff, after getting on the embankment of the defendant's roadbed, had Appeal from Superior Court, Rockingham these freight cars to or about the steps to, and did, walk south along the side of County; Ray, Judge. Clark, C. J., dissenting. Action by Raymond Lee against the Southern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed. above referred to, as the presence of these cars, according to plaintiff's evidence, prevented him from crossing at the point where he got on defendant's embankment or road bed, until he passed the end of the box cars, and when he got to the south end of the string of cars, or a few feet north of the steps above referred to, there was a long freight train going north over the easternmost track. That at this point and for some distance in either direction the grade going north was heavy, and, as a result, the engine pulling the freight train going north was exhausting heavily and throwing out great clouds of very dense smoke which settled down between the train going north and the string of box cars above referred to, and over and around where the plaintiff had stopped, at or near the south end of the string of box cars to await the passing of the north-bound freight train. After the caboose of the north-bound freight train had passed, the plaintiff, who had been standing very near the steps for some time, waiting for the said train to pass, passed in an easterly direction beyond the end of the string of box cars. That there he looked in both directions, that is to say, south and north, to see if there was any approaching train. That he saw none. That the smoke at this particular time and place surrounding him was quite dense. That he heard no signal, such as the whistle or bell, or other signal of like character, and he was near enough to have heard such had any been given for the approach of a train to the public crossing above referred to as being 75 yards north of where the plaintiff was standing, nor for the approach to the crossing in front of the mills, nor for the approach to the public crossing some 100 yards south of where plaintiff was standing, and seeing no train approaching, and hearing no signal, plaintiff started to cross the tracks of the defendant in an eastern direction, and as he approached the tracks, next to the side or industrial track, the front of the engine of the freight train proceeding from the north struck the plaintiff and seriously injured him, from which he has never recovered. The plaintiff at the time of the injury was some 15 or 16 years of age. Both the plaintiff and the witness Cheshire stated that they heard no signal given, nor did they hear the approach of the train. There was a space of a little more than 8 feet between the side track and the main line track. not see. If the box cars were taken away, I could not have seen the train; I might have seen it before I got up there. It was the smoke and the box cars, too, that kept me from seeing the train. There was a lot of smoke there, and that kept me from seeing the train when I stepped from behind the box cars. I walked across slow. I looked down the track as soon as I stepped out from behind the box cars. I walked straight across. The train was so close to me it hit me by the time I walked the distance between the side track and the southI could not see it for bound main line track. the railroad for a week, and freight and passenthe smoke. I had been boarding by the side of ger trains pass up and down those main line tracks all during the day and night. I never counted them. They pass there often. Yes, sir; I stepped right up there and couldn't see the train for the smoke. I could have heard it if they had rung the bell. I was trusting entirely to hearing the bell. I looked for a train. Sure, I trusted to the whistle. I didn't trust altogether to hearing the whistle. I trusted some to my eyes, but I couldn't see anything. I could not see the engine on the track in front of me for the smoke. I had not started across over there to jump on there and ride that train to the depot. It was a clear day." His honor, among other things, charged the jury as follows: "(1) If the jury find as a fact from the evidence that the box cars referred to were from 50 to 70 feet north from the steps, then I charge you that the presence of the box cars is is, that the presence of the box cars does not not material upon any aspect of this case; that tend to show negligence on the part of the defendant, nor is the plaintiff thereby in any degree relieved of the duty to exercise the usual care on account of the presence of the said box cars. "(2) Unless you shall find as a fact from the so thick and evidence that the smoke was heavy that the train that struck the plaintiff could not be seen by him, then I charge you to answer the second issue, 'Yes,' even though you may find as a fact that there was no signal given of the approach of the train. "(3) Unless you find as a fact from the evidence that the box cars were so close to the steps as to interfere with the sight of the approaching train, or that the smoke was SO thick and heavy that the train could not be scen by the plaintiff, then I direct you to answer the second issue, 'Yes,' even though there was no signal or warning given of the approach of the train. "(4) It was the duty of the plaintiff to use The plaintiff, among other things, testified both his sense of sight and sense of hearing, as follows: and the law does not permit him to rely altogether upon the expectation that the train would give a warning of its approach by bell or whistle." "I had passed over the side track and stepped up on the south-bound track, and that's where it hit me. I couldn't see it for the smoke and dust and the box cars. There was The plaintiff excepted to each instruction. lots of smoke and dust that the train had raised. I could not see the train for these box cars; and, after passing them, I looked to the north and couldn't see the train, and I did not hear it. I waited until the north-bound train had passed before I started to go across, and still The jury answered the first issue as to negligence in favor of the plaintiff and the second as to contributory negligence in favor of the defendant. There was a judgment for the defendant, (105 8.E.) P. T. Stiers, of Reidsville, and King, Sapp | son v. Railroad, 163 N. C. 431, 79 S. E. 690, & King, of Greensboro, for appellant. Manly, Hendren & Womble, of WinstonSalem, for appellee. ALLEN, J. [1] It is rare that negligence or contributory negligence is dependent on a single fact, and, on the contrary, it is to be determined by a consideration of all the relevant surrounding circumstances. Ann. Cas. 1915B, 598; Penninger v. Railroad, 170 N. C. 475, 87 S. E. 249; Perry v. Railroad, 104 S. E. 673, at this term, and in other cases. But they are not determinative of the present appeal, because in all of them, where obstructions were present, they were not temporary and fleeting, while in this case the plaintiff was prevented from seeing the approaching train by the smoke of another train, which would have been lifted or removed in a moment of time. As said in Oleson v. Railroad, 143 Ind. 405, 415, 42 N. E. 736, 739, 32 L. R. A. 152: One fact, separate from others, may have little or no bearing, and, by the process of elimination, all ground for the contention If the plaintiff had a bandage across his that negligence exists on the part of the plain- eyes, the law would not permit him to walk tiff or defendant may be removed, when, if on a track, where he might reasonably expect all the circumstances are considered togeth- a train, without removing it, and the smoke er, the inference of negligence is manifest. was as effective as the bandage would be [2] We do not therefore approve the prac-in obscuring or blotting out the vision, for tice of making single instances the basis the time, and almost as easily and speedily of instructions, although sometimes permis- gotten rid of. sible; but if there is error in the instructions given by the court, and the subject of exception, it is immaterial, because, in our opinion, the plaintiff is guilty of contributory negligence on his own evidence, as he admits that he left a place of safety at the end of the box cars and walked a distance of eight feet, on a clear day, onto a track, where he knew trains were constantly passing, when he was enveloped with smoke, an obstruction that would be removed in a moment, and when he says, "I waited until the north-bound train had passed before I started across, and still the smoke was settled around there so I could not see," and again: "I walked across slow. I looked down the track as soon as I stepped out from behind the box cars. I walked straight across. The train was so close to me it hit me by the time I walked the distance between the side track and the south-bound main line track. I could not see it for the smoke." [3] One who voluntarily goes on a railroad track, where the view is unobstructed, and fails to look and listen, cannot recover damages for an injury which would have been avoided if he had done so. [4] The duty to look and listen may be qualified by obstructions and other circumstances, and when these appear the question of contributory negligence is ordinarily for the jury. He is not required to look continuously when he has been misled by the failure of the company to give notice of the approach of its train, or where his attention is rightly directed elsewhere, and he cannot be expected to look in both directions at the same time. wait in a place of safety until he could see and "Under the circumstances, it was his duty to hear, and thus, with reasonable certainty, ascertain that no west-bound train was approaching on the south track. If the obstruction had been of a permanent character, the question would be a different one; but here the smoke was, as he knew, but a temporary obstruction; and, if he had but waited a few moments, he could have seen the approaching train, and avoided the injury." N. J. Law, 574, 27 Atl. 1064, the plaintiff In West Jersey Railroad Co. v. Ewan, 55 was held to have been negligent in going upon a railroad track while the noise and smoke of a train that had just passed deprived him temporarily of the power to see clearly and hear distinctly. The plaintiff traveling along the street on foot in the daytime came to the defendant's intersecting railroad, which consisted of three tracks. He stopped upon the first track, which was not in use, for a freight train going towards his left on the furthest track to pass the crossing. This train made a "tremendous noise" and emitted smoke which settled down upon the tracks. When the freight train had passed, then, knowing that the middle track was used for trains coming from his left, he looked towards the left, and seeing nothing but smoke upon the track, and hearing no whistle, or bell, he proceeded to walk across at his usual gait, and was struck by train coming from the left on the middle track. After a recitation of these facts, the court said: "From these circumstances it is apparent [5] These principles are established by Cooper v. Railroad, 140 N. C. 209, 52 S. E. that the plaintiff, without any reason for haste, 932, 3 L. R. A. (N. S.) 391, 6 Ann. Cas. 71; that he could neither see nor hear any train went upon the track when it was evident to him Inman v. Railroad, 149 N. C. 123, 62 S. E. which he was aware might be approaching, and 878; Farris v. Railroad, 151 N. C. 483, 66 when the causes of his inability to see and hear S. E. 457, 40 L. R. A. (N. S.) 1115; Fann were so fleeting that in a few seconds they v. Railroad, 155 N. C. 136, 71 S. E. 81; John- would have gone. It seems indisputable that |