Sawyer v. Southern Railway Co.

Devin, C. J. It has been repeatedly said by tbis Court that judgment of involuntary nonsuit may properly be entered when the plaintiff by his own testimony makes out a clear case of contributory negligence, and thus proves himself out of court. Hayes v. Tel. Co., 211 N.C. 192, 189 S.E. 499; Hampton v. Hawkins, 219 N.C. 205, 13 S.E. 2d 227; Barlow v. Bus Lines, 229 N.C. 382, 49 S.E. 2d 793; Howard v. Bingham, 231 N.C. 420, 57 S.E. 2d 401; Carruthers v. R. R., 232 N.C. 183, 59 S.E. 2d 782. Here the plaintiff testified he saw the engine and cars backing toward him, and he stopped to see whether the train would continue on the sidetrack on which it was moving or turn into a spur track which crossed plaintiff’s path. Instead of waiting to determine the event, plaintiff, according to his own testimony, walked over to some cars standing on the sidetrack on which the train was coming, and laid his hand on one of them or got between two of them, and was injured when the train continuing on the sidetrack pushed into those cars. The fact that there was no light or trainman on the end of the train approaching would not relieve plaintiff of the duty to exercise ordinary care when he saw the train coming, observed its movement, and knew it must come on either the sidetrack or the spur track. Without waiting, he acted on the mistaken idea that the train would turn aside on the spur, and in some way got between the cars on the sidetrack. Contributory negligence seems to have been clearly established by plaintiff’s own testimony. Judgment affirmed. VALENTINE, J., took no part in the consideration or decision of this case.