
    STEPHENSON DAVIDSON, Administrator, v. SEABOARD AIR LINE RAILWAY COMPANY.
    (Filed 10 May, 1916.)
    1. Railroads — Contributory Negligence — Public Crossings — look and Listen— Issues — last Clear Chance.
    Where the evidence tends to show that the plaintiff’s intestate, without looking or listening, attempted, in. the daytime, with an unobstructed view, to cross defendant’s railroad track in front of a slowly approaching train, heedless of a shout of warning by defendant’s employee thereon given to another, when he was 6 feet and the locomotive 10 feet at right angles to the point of contact, but continued to walk forward, and received the injury resulting in his death: Held, should the facts be accordingly established, the contributory negligence of the intestate will be regarded as the proximate cause of the resulting injury, and bar recovery, and an issue as to the last clear chance is properly refused.
    2. Same — Presumptions.
    Where in an action against a railroad company to recover damages for the- negligent killing of plaintiff’s intestate there is ample circumstantial evidence that his death was proximately caused by his contributory negligence in failing to look and listen, or observe the caution required of him before going upon the track in front of defendant’s train, there can be no presumption in his favor that he had previously looked or listened for the approach of the train.
    Appeal by plaintiff from Garter, /., at March Term, 1916, of MECKLENBURG.
    Civil action tried upon these issues:
    1. Was the plaintiff’s intestate’s death caused by the negligence of the defendant, as alleged in the complaint? Answer: “Yes.”
    2. Did the plaintiff’s intestate contribute to her death by her own negligence, as alleged in the answer? Answer: “Yes.”
    
      3. What damages, if any, is the plaintiff entitled to recover? Answer : ....
    The plaintiff tendered the following additional issue: “Notwithstanding the contributory negligence of the plaintiff’s intestate, could the defendant, by the exercise of ordinary care, have avoided the injury and death of plaintiff’s intestate?” The court declined to submit this issue. Plaintiff excepted.
    From the verdict and judgment rendered, plaintiff appealed.
    
      J. M. Roberson for plaintiff.
    
    
      Cwnsler & Cansler for defendant.
    
   BeowN, J.

This ease was before us at last term and is reported in 170 N. C., 281. On that trial a motion to nonsuit had been sustained apparently on the ground that upon the plaintiff’s evidence his intestate was guilty of contributory negligence which barred a recovery. We then held that the evidence was of the character that required the issue of contributory negligence to be submitted to the determination of a jury. We are of opinion that the court properly refused to submit the issue tendered by the plaintiff, as there is no evidence upon which to base it.

The evidence of contributory negligence on this last trial is clearer than on the first trial, and tends to prove that plaintiff’s intestate was familiar with this crossing, as she had been passing over it daily for three weeks. As she approached the crossing, defendant’s train, which consisted of an engine and three box cars, with either one or two box cars in front of the engine, stopped at the main-line switch. The switch was opened and then the train approached the crossing, coming up grade about 2 or 3 miles an hour. The engine was puffing and making a noise, but neither ringing a bell nor blowing a whistle. There was a brakeman on the box ear who was so close to the leading end that he" could be seen when he was halfway, standing up, by a man standing on the ground 12 or 14 feet away. There was a man standing on the track, just within the gates- of the ice plant, with his back towards the train. When the leading end of the box car was on Eleventh Street within 10 feet from where the plaintiff’s intestate was struck, the brakeman on the box car warned the man, who was standing on the track, by shouting “Look out!” loud enough to be heard 50 yards, and the man (plaintiff’s witness Overeash) jumped from the track. When the man hollered “Look out!” Lucy Davidson was 6 feet from the track, and the front end of the train was 10 feet from her. It had1 to run 10 feet while she was going 6 feet. She was walking with her head down, paying no attention. There was nothing to keep her from seeing the train as she approached the track. It is manifest that if sbe bad listened sbe would bave -beard it, and if sbe bad looked sbe would bave seen it;

Tbe only eye-witness, Overoasb, testifies tbat: “He (tbe brakeman) hollered loud enough for any one to bave beard him 50 yards. There was nothing to prevent tbe woman from looking up and seeing tbe caí-as it came towards her, when I first saw her, if sbe bad been looking.”

Tbe evidence shows tbat after tbe brakeman hollered, tbe train moved 10 feet and tbe intestate continued to walk 6 feet before sbe ran into tbe moving train. Sbe was in tbe act of stepping on tbe rail as tbe end of tbe car bit her. Tbe evidence fully warrants tbe court in refusing to submit tbe issue tendered by plaintiff, and plainly justifies tbe instructions given upon tbe issue as to contributory negligence.

It is well settled tbat where a pedestrian, in tbe daytime, steps upon a railroad track, tbe view of which is unobstructed, and is injured thereby, and has not looked or listened, bis own negligence is tbe proximate cause of tbe injury, and such negligence will preclude bis recovery.

In tbe case of Trull v. R. R., 151 N. C., 545, in which tbe facts are similar to tbe facts in tbe present case, tbe engine, before approaching tbe crossing, bad1 to stop and allow a switch to be thrown, and then came onto tbe crossing without giving tbe usual signals. Just at tbe crossing, and at tbe precise time of tbe impact, tbe plaintiff stepped from a position of apparent safety onto tbe track, just in front of tbe moving engine, and was run over and killed.

Tbe Court said: “On this statement we think tbe intestate was guilty of contributory negligence, barring recovery, and the order of tbe court below dismissing tbe case on a judgment of nonsuit must be affirmed.”

That case seems to be on all-fours with tbe case at bar.

In Coleman v. R. R., 153 N. C., 322, we said: “Tbe doctrine tbat such negligence bars recovery has been consistently recognized by this Court in at least thirty-five cases, beginning with Parker v. R. R., 86 N. C., 221, and ending with Mitchell v. R. R., this term.”

Tbe plaintiff requested tbe court to charge tbe jury upon tbe second issue tbat in tbe absence of all evidence tending to show whether plaintiff’s intestate stopped, looked, and listened before attempting to cross defendant’s track, tbe presumption would be tbat sbe did.

This instruction is predicated upon tbe theory tbat there is no evidence whatever throwing light, upon tbe intestate’s conduct as sbe approached tbe track. Tbe instruction was properly refused, because there is abundant evidence tending to prove tbat tbe intestate did not stop, look, and listen as sbe approached tbe track, but actually walked heedlessly into tbe moving car and was struck as sbe put her foot on tbe rail. This conclusion was evidently deduced by tbe jury from tbe testimony of plaintiff’s witness Overcash, and the testimony fully supports it.

The cases cited by the learned counsel for plaintiff are all wanting in any kind of evidence, positive or circumstantial, throwing light upon the conduct of the deceased. That is not the case now before us. The presumption of the exercise of due care on the part of the deceased is repelled if the circumstances in evidence, as in this case, show that she must have seen the train if she had looked, or must have heard it if she had listened, in time to have prevented the accident. Imes v. R. R., 105 Ill. App., 37; Crawford v. R. R., 109 Ia., 433; Malott v. Hawkins, 159 Ind., 127; So. Ry. Co. v. Davis, 34 Ind. App., 377; Mitchell v. R. R., 64 N. Y., 655; Haetsh v. R. R., 87 Wis., 304; Wilcox v. R. R., 39 N. Y., 440; 100 Am. Dec., 440 and Notes.

In this last case, supported by copious citations in the notes to the Am. Dec., it is held that it will be presumed that a person injured in attempting to cross a railroad track did not look before crossing,.if it appears that had he done so he must have seen the approaching train in -time to have avoided it.

In deference to our former opinion, the court submitted the issue of contributory negligence to the determination of the jury with clear and appropriate instructions, placing the burden of proving it upon the defendant. The jury found it against the plaintiff, and we find nothing in the trial of which he has just cause to complain.

No error.  