Harris v. Black Mountain Railway Co.

*799 Per CuriaM. Conceding that under authoritative decisions of- this Court, the evidence for the plaintiff, the defendant having offered no evidence, was sufficient to sustain the allegations in the complaint that plaintiff’s injuries were caused by the negligence of defendant, on its appeal to this Court, the defendant contends that there was error in the refusal of the trial court to allow its motion for judgment as of nonsuit, at the close of all the evidence, for that all the evidence shows that plaintiff did not stop his truck before driving on the crossing and thus avoid the collision which resulted in his injuries. Defendant contends that such failure was negligence per se on the part of the plaintiff, which contributed as a proximate cause to his injuries. This contention cannot be sustained. The principle on which the contention is made is well settled in this State and elsewhere. Butner v. R. R., ante, 695; Harrison v. R. R., 194 N. C., 656, 140 S. E., 598; B. & O. R. R. Co. v. Goodman, 72 L. Ed., 167. The principle, however, is not applicable in the instant case. The law in this State does not impose upon the driver of a motor vehicle, on his approach to a public crossing, the duty, under all circumstances, to stop his vehicle before driving on the crossing. Whether under all the circumstances, as the evidence tends to show, and as the jury may find from the evidence, the failure of the driver to stop, as well as to look and listen for an approaching train at a railroad crossing, was negligence on his part, is ordinarily a question involving matters of fact as well as of law, and must be determined by the jury under proper instructions from the court. This principle has statutory recognition in this State, and was properly applied in the instant case. The judgment is affirmed on the authority of Butner v. R. R., supra. No error.