Ellis v. ATLANTIC COAST LINE RAILROAD COMPANY

Denny, J. The appellant’s exceptions are not grouped as required by tbe Eules of Practice in tbe Supreme Court, Eule 19 (3), 221 N.C. at page 553, et seq. However, tbe appeal itself will be treated as an exception to tbe judgment, Casualty Co. v. Green, 200 N.C. 535, 157 S.E. 797, but tbe other purported assignments of error which do not comply with our rules, may not be considered. G.S. 1-282; S. v. Bittings, 206 N.C. 798, 175 S.E. 299. If it be conceded that the plaintiff’s intestate was killed by one of tbe defendant’s trains, tbe evidence is not sufficient to establish tbe fact that be was killed by its 11:50 p.m. southbound train on 29 May, 1952, as alleged in tbe complaint. Therefore, any conclusion as to which one of tbe defendant’s trains killed tbe plaintiff’s intestate would have to be based on mere speculation. Consequently, the evidence offered by tbe plaintiff in tbe trial below fails to show that tbe manner in which tbe defendant operated its 11:50 p.m. train on 29 May, 1952, was tbe proximate cause of tbe death of plaintiff’s intestate. Moreover, if tbe plaintiff’s intestate entered upon or near tbe defendant’s railroad tracks under the circumstances which the evidence tends to show, bis status at such time was that of a trespasser. Tbe accident, according to tbe evidence, occurred at least 300 yards from the nearest crossing. His act in placing himself in a dangerous position, on or near the defendant’s railroad tracks, constituted such negligence on his part as would preclude a recovery of damages from the defendant for bis death, unless the defendant had the last clear chance to avoid the injury. Lee v. R. R., 237 N.C. 357, 75 S.E. 2d 143; Osborne v. R. R., 233 N.C. 215, 63 S.E. 2d 147; Long v. R. R., 222 N.C. 523, 23 S.E. 2d 849; Justice v. R. R., 219 N.C. 273, 13 S.E. 2d 553; Mercer v. Powell, 218 N.C. 642, 12 S.E. 2d 227; Cummings v. R. R., 217 N.C. 127, 6 S.E. 2d 837. And the appellant admits in her brief that the doctrine of last clear chance does not apply in this case, and points out that it is not pleaded. Bailey v. R. R., 223 N.C. 244, 25 S.E. 2d 833. The ruling of the court below is Affirmed. Barnhill, C. J., took no part in the consideration or decision of this case.