Bailey v. Black Mountain Railway Co. ( 1929 )

At the conclusion of the evidence for plaintiff the motion of nonsuit made by the defendant was sustained, and the plaintiff appealed. The plaintiff, who was 73 years of age, and deaf, attempted to cross the track of defendant at a public crossing near Micaville.

In describing the manner of his injury, plaintiff said: "I never paid much attention, but I looked up the road, and I went to step up on the road and didn't know anything then. . . . When I was within five feet of the cross-ties I could see down the track . . . about 200 feet. . . . I wasn't paying much attention, and I expect I couldn't hear that noise made by the engine pushing those cars around that curve, up grade. I reckon I didn't look that time when I got within five feet of the cross-ties." There was evidence that the train gave no signal as it approached the crossing.

Contributory negligence, such as will defeat a recovery in a case like the one at bar, is the negligent act of the plaintiff, which concurring and cooperating with the negligent act of the defendant, thereby becomes the real, efficient, and proximate cause of the injury, or the cause without which the injury would not have occurred. Moore v. Iron Works, 183 N.C. 438,111 S.E. 776; Elder v. R. R., 194 N.C. 617, 140 S.E. 298; Popev. R. R., 195 N.C. 67, 141 S.E. 350.

The facts disclosed by the present record bring the case squarely within the principles announced by this Court in the Elder and Pope cases, supra, and the ruling of the trial judge in sustaining the motion of nonsuit is approved.

Affirmed.