
    WILLIAM M. WRIGHT v. SOUTHERN RAILWAY COMPANY.
    (Filed 26 May, 1911.)
    1. Pleadings — Contributory Negligence — Allegations Sufficient.
    A plea of contributory negligence, in an action alleged to have been caused To plaintiff as a result of baying crossed defendant’s track in a buggy at a public crossing in front of a moving train, is sufficient which alleges that the plaintiff entered upon tbe track of tbe defendant without looking and listening, and that be recklessly attempted to cross.
    2. Evidence — Legal Sufficiency — Questions for Court.
    Tbe judge should decide, as a matter of law, whether there is any legal evidence sufficient to be submitted to the jury.
    3. Nonsuit — Contributory Negligence — Plea Available, When.
    A defendant may avail himself of the plea of contributory negligence on a motion to nonsuit upon evidence introduced by the plaintiff.
    4. Railroads — Contributory Negligence — Effect—Causal Connection.
    When one has negligently placed himself on a railroad 'track in danger of an approaching train, and injurious consequences result from other sources, harmless in themselves, such as driving into a post on the other side of the track, the contributory negligence of the person so acting will bar his recovery in his action for damages alleged against the railroad company.
    5. Railroads — Crossings — “Look and Listen” — Contributory Negligence — Nonsuit.
    While passing in a buggy across a railroad ti;ack closely in front of defendant’s moving train, of which plaintiff did not know beforehand, the plaintiff’s horse became frightened by the smoke and noise of the train, and the plaintiff whipped up his horse to get across from the danger of being run over, and ran into a post on the other side of the track, to his injury. Held, the failure of plaintiff to look and listen before entering upon the track, and to heed the noises of the approaching train and a warning given by his companion, who jumped out of the buggy in time, -was such contributory negligence as to bar his recovery of damages.
    Appeal by plaintiff from Gouncill, J., at tbe December Term, 1910, of BuNCOMbe.
    This is an action to recover damages for personal injury, on tbe ground of negligence.
    
      Tbe defendant denies that it was negligent and, among other things, alleges that the plaintiff’s injuries were caused by his own negligence and want of due care in attempting to drive across defendant’s railroad at its crossing, without looking or listening for defendant’s approaching train, as it was his duty to do for his own safety. The defendant says that the plaintiff did not look or listen for the approach of defendant’s engine or train, as it was his duty, under the circumstances, to do, and that he could, had he looked and listened, have seen and heard the approach of defendant’s engine in time to have placed himself out of danger; in fact, the defendant alleges that it did blow its whistle at the usual place for blowing for said crossing, about three hundred yards from said crossing, while approaching the same, and that the plaintiff, as well as other persons, heard the same, and instead of remaining in a place of safety until after defendant’s engine would pass said crossing, as it was his duty to do, he carelessly, recklessly and negligently, without due care for his own safety, violently whipped his horse, driving him and the buggy drawn by said horse across defendant’s railroad track in front of defendant’s approaching engine to a place of safety beyond, after which he recklessly and carelessly so drove said horse that said buggy in which the plaintiff was driving, at a distance of about thirty-six feet from the defendant’s said railway and crossing, struck a post, injuring said buggy and throwing the plaintiff therefrom, injuring the plaintiff thereby, without any fault' or negligence on the part of the defendant or its employees who were running said engine very slowly, not exceeding twelve miles an hour, its engineer and fireman all the while fully complying with their duty by keeping a constant lookout ahead, and who did, as soon as the plaintiff approached said railroad track or crossing near enough to become dangerous, apply the emergency brake and all other appliances at hand and stopped said engine before reaching said crossing, or just as it reached the same, without striking said horse and buggy of the plaintiff or the plaintiff himself. Had the plaintiff looked or listened before attempting to drive across said crossing, as it was his duty to do, he could have seen and heard said east-bound engine in ample time to have avoided the accident, but in total disregard of bis own duty, be carelessly and negligently attempted to drive bis borse and buggy across defendant’s railroad at said crossing, and in doing so struck bis borse violently witb tbe whip, thereby frightening him and causing him to run against tbe said post, injuring tbe plaintiff, if be was injured at all.
    Tbe plaintiff introduced a rule of tbe defendant which reads: “Passenger trains in tbe same direction must keep at least ten minutes apart; freight trains fifteen minutes apart, except when closing up at stations or at meeting or crossing points, except where block signals are used.”
    Tbe following is tbe statement of facts and tbe evidence taken from tbe brief of tbe plaintiff:
    Tbe defendants admits that on tbe 6th day of September, 1909, tbe plaintiff was injured in attempting to cross it's track witb bis buggy; that plaintiff’s borse became frightened by an approaching train and plaintiff was thrown out against a post and injured.
    Tbe plaintiff testified in bis own behalf that on 6 September, 1909, be was going towards Canton, and bad just passed a little branch, and a freight train hove in sight coming from Canton; that be drove on, bis mare in a slow trot, kind of cantering along; be did not see anything to stop for, as tbe train bad just passed. He thought everything was clear, and when be got to' the railroad crossing Hall, tbe man in tbe buggy witb him, said, “There is another train coming up there,” and plaintiff said, “It is that train down there,” and Hall jumped out of tbe buggy right at tbe track and said, “Whip up your mare, or you will be caught,” and plaintiff turned bis bead and looked up tbe track and tbe train was about forty or sixty feet from him, coming backwards down tbe track, and be struck bis mare and tbe smoke and steam coming out scared tbe mare and she threw him against tbe sign post and injured him. Just before coming to tbe crossing where be was injured be saw a freight train go beyond tbe crossing 150 yards and stop, and this led him to. believe there was nothing else behind — be was pretty close to tbe railroad and did not burry — let bis mare go, did not burry her, but just as be got to tbe track tbe man that was in tbe buggy witb him (bad not quite got to tbe track, maybe sixteen or seventeen feet from it) said, “I believe I bear another train.” Plaintiff did not stop, and be jumped out of tbe buggy at tbe railroad, and wben be jumped out and said, “Whip up your mare, or you’ll get caugbt,” plaintiff turned bis bead and saw tbe train was coming two or three rail lengths from him, and whipped bis mare, and just then tbe steam came out, causing tbe mare to shy to the left.
    Between tbe little branch and tbe crossing is over 100 yards; it is 150 to the place; it would take two or three minutes to go from tbe little branch to tbe crossing; could walk it in two or three minutes or less time — “it was just all right now.” Plaintiff could see nothing till be got on tbe track; wben right at tbe railroad could not see 150 feet; could see about two or three rail lengths. No top on tbe buggy; it was open; no curtains. Tbe embankment at tbe crossing comes right down to it. Just before getting to tbe railroad, that bill makes off and makes a kind of bend.
    Hall testified: “We crossed tbe branch, and after we crossed it, there was a freight train coming down from Canton, and 1 after coming on past us it stopped over tbe trestle, and we drove on to tbe next crossing, and there was a very high bank there that you can’t see up the railroad any, arid just before we got to the crossing I thought I beard a train blow, and said, ‘I believe there is a train coming,’ and as I said that I put my hand on the side of the buggy and jumped, and when I turned my face his mare’s foot was on the track and buggy very-close, and I hollered to him to whip the mare, and he crossed the track, and I saw he was going to hit the sign-post, and I saw him hit the sign-post and make a somersault. The distance from the little branch to the railroad crossing is 148 yards. I walked it in 1% minutes.”
    Thomas Wright testified that he was within 150 or 175 yards of plaintiff when the accident occurred; that he did not hear any bell ring or whistle blow; thought he could have heard.
    There was.a judgment of nonsuit, from which the plaintiff appealed.
    
      James II. Merrimon and Bourne, Parker & Morrison for plaintiff.
    
    
      Moore & Rollins and W. B. Rodman for defendant.
    
   AlleN, J.,

after stating tbe case. It is true, as contended by tbe learned counsel for tbe plaintiff, tbat tbe defendant must plead contributory negligence, and tbat tbe plea is not good wben it does no more tban deny tbe negligence of tbe defendant and allege tbat tbe plaintiff was injured 'by bis own negligence. Re1-visal, sec. 483; Cogdell v. R. R., 132 N. C., 855.

The defendant, as appears from tbe answer, has done more tban this, and we think it is entitled to avail itself of tbe defense. It has alleged tbat tbe plaintiff entered upon tbe track of tbe defendant without looking and listening, and tbat be recklessly attempted.to cross tbe track in front of an approaching train.

~We also concur in tbe interesting and able discussion of tbe relative functions of tbe judge and jury, and of tbe importance of preventing encroachment by one on tbe powers of tbe other, but we must recognize tbe principle, firmly established, tbat tbe judge must decide, as matter of law, the preliminary question whether there is any legal evidence to be submitted to tbe jury.

In the determination of this question, caution should be observed and tbe construction of the evidence most favorable to the plaintiff should be adopted.

Considering tbe evidence in this light, we must sustain tbe ruling of tbe judge, as it appears clear to us tbat tbe plaintiff was guilty of contributory negligence on his own evidence.

There was much controversy at one time 'as to the right of tbe defendant to avail itself of tbe plea of contributory negligence on a motion to nonsuit, but it is now the accepted doctrine with us tbat it can do so if it is disclosed by tbe evidence of tbe plaintiff. If tbe plaintiff entered on tbe track without looking and listening, or if be looked and listened and attempted to drive in front of the train, in either case be would be guilty of contributory negligence.

He says tbat wben be was sixteen or seventeen feet from tbe track, Hall, who was in tbe buggy with him, told him be beard another train, and jumped out and told him to whip up or be would be caught; tbat be turned and saw tbe train, two or three rail lengths from him, and tbat be whipped bis mare to force him across.

It is true be was not injured on tbe crossing, but be would not have been injured at all if be bad not negligently placed bimself in a position of danger.

Tbe citation of authority is needless, as there is no controversy between tbe plaintiff and tbe defendant as to what tbe law is, but as to its application.

Affirmed.  