Scoggins v. Southern Railway Co.

*632 Per CuRiAM. Defendants’ contention on their appeal to this Court, that there was error in the refusal of the trial court to allow their motion for judgment as of nonsuit, for that all the evidence showed that plaintiffs’ intestate, by his own negligence contributed to the injuries which resulted in his death, cannot be sustained. This case is readily distinguishable from Pope v. R. R., 195 N. C., 67, 141 S. E., 350, and cases cited in support of the reversal of the judgment in that ease. There was evidence tending to show that plaintiffs’ intestate, before entering upon the crossing and immediately before he was struck by defendants’ train, stopped, looked and listened for an approaching train; and that his failure to see the train approaching on the main line was due to the negligence of the defendants, in parking on the pass track a solid line of box-cars which extended from the crossing a distance of nearly a mile in the direction from which the train was approaching the crossing. There was evidence tending to show that this train was running at a rate of speed in excess of that prescribed by an ordinance of the city of Durham, and that no warning by the ringing of a bell or otherwise was given of the approach of the train. There was evidence on behalf of the defendants tending to contradict the evidence for the plaintiffs; All the evidence, pertinent to the issue involving contributory negligence, was submitted to the jury under a charge to which there was no exception. It is conceded that there was evidence tending to show that the death of plaintiffs’ intestate was caused by the negligence of the defendants, as alleged in the complaint. There was no error in the ruling of the trial judge on defendants’ motion for judgment as of nonsuit at the close of all the evidence. The judgment is affirmed. No error.