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(Filed June 11, 1903.)

NEGLIGENCE-Contributory Negligence-Railroads-Trespasser.

The plaintiff's intestate was walking along a railroad track with a companion in the day time, which was commonly used by the people in that vicinity as a footpath, was warned of a train approaching from the rear, which she could have seen and heard, and answered the warning indicating that she knew of its approach. The whistle was blown and the bell rung, but intestate failed to leave the track, whereupon she was struck and killed. Upon which testimony a nonsuit was properly granted. CLARK, C. J., and DOUGLAS, J., dissenting.

ACTION by J. C. Bessent, as administrator of Fanny Scales, against the Southern Railway Company, heard by Judge Walter H. Neal, at March Term, 1903, of the Superior Court of FORSYTH County.

This action was brought by the plaintiff to recover damages for the alleged negligent killing of the intestate by the defendant. The plaintiff's intestate, Fanny Scales, was walking along the track of defendant near Winston in the direction of Wilkesboro, accompanied by Will Smith, when an engine pushing four box cars approached from the south. There was evidence tending to show that the whistle was sounded twice and that the intestate could have heard it and could also have heard the noise of the train, and that she could easily have seen the train in time to have stepped from the track to a place of safety. There was nothing to prevent her doing so. Persons farther away from the train than the intestate was at the time she was killed both saw and heard it. William Hairston, a witness for the plaintiff, testified: The train coming up through the cut made a great deal of noise and persons could easily have looked back and seen the train if they had eyes and could have gotten off if they wanted to. Will Smith had the intestate by the hand or


wrist; she was on the sills of the track and he was walking on

the ground beside the sills. along laughing and talking. either side of the track.

They seemed to be walking She could have stepped off on If she had ordinary hearing she was bound to have heard the train. The plaintiff himself testified: When the girl was killed she could easily have gotten from the track, more easily to the left than to the right. Any person could easily have gotten off the track; all they had to do was to step off; they could easily have stepped off and been out of danger; between the two tracks it is level and she could easily have stepped off. The evidence also tended to show that the intestate was killed near the end of a cut which was directly under the place where Main street was when it ran over the embankment and before the embankment was cut down for a railroad track; but the cut had not been used as a street, though it had been used by pedestrians "as a common foot path" when going from one of the factories to the northwest portion of Winston. In reference to this matter the plaintiff testified: This cut does not pretend to be a street; part of Main street used to be where this cut is, and they have narrowed that street very much, and on the west side of the cut, up on the embankment, there is still a driveway; this street is thirty-five feet higher than the track; people walk along the track as they do everywhere.

The ordinance of the city of Winston provides that it shall be unlawful for trains and locomotives to run at a greater speed than eight miles an hour, and the intestate was killed within the city limits, the train was running twenty miles an hour when the intestate was killed and it was in the day time. There were two men on the end of the front or leading box car, who waved their hands and hallooed to the intestate and her companion as the train approached them. A witness, Ida Douglas, testified: That she was on the track and heard the train blow at the south end of the cut; she ran to the


switch and got off; as she passed the intestate she said to her, "Fanny, the train is coming," to which the intestate replied, "All right, honey." The intestate remained on the track and was killed by the train. At the close of the plaintiff's testimony, the defendant moved for judgment of non-suit under the statute. The court intimated that it would charge adversely to the plaintiff, whereupon he submitted to a nonsuit and appealed. The plaintiff assigns as error:

1. That the court refused to submit the plaintiff's third issue as to the last clear chance of the defendant to avoid. the injury, which issue, it is stated in the record, was submitted in apt time.

2. That the court allowed the defendant's motion to nonsuit the plaintiff.

3. That the court directed the jury to answer the second issue "Yes" and the third issue "Nothing."

J. S. Grogan, for the plaintiff.

Glenn, Manly & Hendren, for the defendant.

WALKER, J., after stating the case. If the court dismissed this action upon the defendant's motion, or if, in deference to an adverse intimation of the court, the plaintiff submitted to a judgment of non-suit and appealed, this court must consider all the evidence for the plaintiff "as true, and regard it in the most favorable light" for him, as stated by this court in Collins v. Swanson, 121 N. C., 67. The rule that where there is a non-suit in submission to an intimation of the court against the plaintiff's right to recover, the evidence introduced by the plaintiff must be taken as true for the purpose of deciding whether, in any reasonable view of it he can recover, has frequently received the sanction of this court. Springs v. Schenck, 99 N. C., 551; 6 Am. St. Rep., 552; Gibbs v. Lyon, 95 N. C., 146; Abernethy v. Stowe, 92 N. C., 217. All of the witnesses in this case were introduced by


the plaintiff, and he represented, therefore, that they were creditable. The law will not permit him to impeach their credibility, although he could have shown, if he had been disposed and able to do so, that the facts were different from those to which they testified. It is stated in the case that the plaintiff submitted to a non-suit because the court intimated that it would so charge the jury that they would have to answer the first issue "Yes," the second issue "Yes" and the third issue "Nothing," but it does not clearly appear what particular form the charge of the court would have taken, if it had been delivered to the jury. We can not infer from the statement in the record that the court intended to direct a verdict peremptorily for the defendant, and the only inference we can draw from the language is that the court would have charged the jury that if they believed the evidence they should answer the issues as already indicated.

The question, then, is whether if the evidence is taken as true there is any reasonable view of it which would entitle the plaintiff to a trial of the issues by a jury, the evidence being considered in the most favorable light for him. In Neal v. Railroad, 126 N. C., 641; 49 L. R. A., 684, the court referring to facts similar to those we have in this case says: "The usual rule is to submit the issue to the jury with the instruction that if they believe the evidence they will find the issue 'Yes' or 'No,' as the case may be. This is usually a good rule and in many cases saves an appeal to this court. But the court could not do that in this case without impeaching the plaintiff's witnesses. All the evidence was offered by the plaintiff, and the defendant had demurred to it. This was an admission by the defendant that the evidence was true. The plaintiff offering the evidence had vouched for its credit. He could not impeach its credit. As to the plaintiff, it stood unimpeached and unimpeachable. It is true that if the plaintiff had offered other evidence tending to


show the facts different, then it would have become a matter for the jury as to which witness they would believe."

All the evidence in this case, as we have stated, was introduced by the plaintiff and there is no contradiction in it. It is plain, direct and conclusive in establishing negligence on the part of the plaintiff's intestate, which was the proximate cause of her death. It can make no difference whether he has failed to show negligence of the defendant, or whether, having shown such negligence, he has also shown by his own proof that the intestate's negligence was concurrent, up to the last moment, with that of the defendant, or that, after the defendant was seen or could have been seen to be negligent, the intestate had the last clear chance to avoid the injury. In either case, the plaintiff would not be entitled to recover. The case discloses that the situation of the plaintiff's intestate was such as enabled her to see and hear the train as it approached her in ample time for her to have left the track and averted the injury which caused her death. We are unable to distinguish this case from Neal v. Railroad, supra. The facts in our case appear to be much stronger for the purpose of establishing contributory negligence than the facts in that case were. A brief statement of the facts will suffice to show that the death of the plaintiff intestate was caused by her own negligence, and that the case of Neal v. Railroad, supra, should apply and control in the decision of this case. The plaintiff's intestate was walking along the defendant's track in the day time, with nothing so far as appears to obstruct her view, and nothing to prevent her hearing the whistle or the noise made by the train. Indeed, she was told by one of the witnesses that the train was coming, and she answered in such a way as to clearly indicate that she was aware of its approach. In order to save herself, there was nothing to do but to step from the track, a mere matter of a moment. And, besides, it appears that

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