Kuykendall v. Southern Railway Co. , 208 N.C. 840 ( 1935 )

Pek CxtbiaM.

At the close of plaintiff’s evidence the defendant made a motion in the court below for judgment as in ease of nonsuit. C. S., 567. The court below sustained the motion, and in this we can see no error.

There was plenary evidence to the effect that it was a public crossing and “the engine was not blowing . . . the bell did not ring.” This was negligence on the part of defendant, and, if this was the proximate cause of the injury, plaintiff could recover, but the defendant set up the plea of contributory negligence. On this aspect: Defendant’s train was traveling from East Elat Rock to Hendersonville, practically in a northern direction. The plaintiff’s intestate was in a one-horse wagon, traveling parallel to defendant’s track on a county highway in the same direction. The crossing over the railroad track where plaintiff’s intestate was killed on the main track, leads over to the mill village — Skyland Hosiery Mills. At this crossing on the west is a spur track and then the main track of defendant railroad. As plaintiff’s intestate approached this spur track he had to drive from the county highway up an incline about ten feet high to the tracks. When he reached the top of the embankment and got near the railroad crossing, the road was level, and by looking he could see the defendant’s train 240 steps. It was about 12 o’clock in the daytime and nothing to obstruct his view. He traveled on the level up to and over the spur track and then onto the main track, where be was killed. This would make him guilty of contributory negligence, and would bar recovery. Rimmer v. R. R., ante, 198.

It may be that on account of the peculiar ascending road to the railroad crossing and the difficulty of seeing the train approach, if he had been caught on the spur track a different result would follow. We see no sufficient evidence of last clear chance to be submitted to a jury on account of the horse “prancing around on the railroad track on his hind legs.”

Eor the reasons given, the judgment is

Affirmed.