McCrimmon v. . Powell

BaeNHIll, J. The sole question presented on this appeal relates to the correctness of the ruling of the court below upon defendants’ motion to dismiss as of nonsuit at the conclusion of all the evidence. As to the immediate circumstances of the collision the plaintiff testified, “I was well out on the first track when J saw the headlight of the approaching train, but I could not'tell which track it was coming on. ... As soon as I saw the train coming I tried to get across before it hit me, but I did not have time. . . . When I first saw the headlight of the approaching train I was well out on the first track; was watching it out of the corner of my eye and trying to get across. ... I was just starting off — by the time the train hit me I was up to about 12 or 15 miles. If I had stopped in the middle of the tracks I could have seen both ways two or three miles.” *218 Plaintiff lived for several years within a few blocks of Mason Street crossing. He had passed over it both afoot and on automobiles. He knew the location of each track and its purpose. While he testified that he did not know upon which track the train was approaching, he did know that the first track was used for unloading and that the second or pass track was blocked by a freight train, the engine of which was near the crossing. When he approached the railroad plaintiff knew he was entering a zone of danger. He had timely opportunity to see the approaching train and to stop before reaching the live track. He did see, and seeing, chose to attempt to cross ahead of the train- — to “beat it across” while watching it approach out of the corner of his eye. He took his chance and lost. Hence, the evidence, as it appears in the record before us, even when considered in the light most favorable to him, leads to the conclusion as-a matter of law that plaintiff was contributorily negligent. The judgment of nonsuit is supported by pertinent decisions of this Court. Godwin v. R. R., 220 N. C., 281, and cases cited; Miller v. R. R., 220 N. C., 562; Moore v. R. R., 201 N. C., 26, 158 S. E., 556; Coleman v. R. R., 153 N. C., 322, 69 S. E., 251; Quinn v. R. R., 213 N. C., 48, 195 S. E., 85. We are not inadvertent to the fact that plaintiff first testified that he-saw the train when he was on the first or second track. This will not aid him. If he looked and saw when he was on the first track he had ample time and distance within which to stop. If he did not look, after-passing the building, until he reached the second track his looking was not timely. And even then he was more than 15 feet from the point at which his automobile was struck. Godwin v. R. R., 202 N. C., 1, 161 S. E., 541. The judgment below is Affirmed.