#### DIXON v. RAILROAD.

(Filed December 12, 1905).

Railroads — Grossings—Negligence—Evidence.

In an action against a railroad for damages for the alleged negligent killing of the plaintiff’s intestate at a crossing where there was evidence to show that an engine of the defendant was hacking at night toward a crossing near the depot and ran over and killed the intestate, who at the time was lawfully upon the track endeavoring to cross it going to his home; that the engine was running without lights or signal warnings and without any one stationed so as to keep a proper lookout, held, that these facts fix the defendant with the legal responsibility for intestate’s death.

ActioN by Anderson Dixon, Administrator of Hezekiah Dixon, against Southern Railway Company, for the alleged negligent killing of the plaintiff’s intestate, beard by Judge T. A. McNeill and a jury, at October Term, 1905, of Superior Court of Buncombe.

There was evidence of the plaintiff tending to show that on the night of the 28th of August, 1904, in the town of Black Mountain, N. C., an engine of the defendant was backing towards the crossing near the depot and ran over and killed the intestate; that at the time of the killing the intestate was lawfully and rightfully upon the defendant’s track, endeavoring to cross it, going to bis borne immediately south of the railroad; that the engine was running backward at the time without lights or signal warnings, and without anyone being stationed so as to keep a proper lookout. There was evidence of the defendant tending to contradict the plaintiff’s testimony. Verdict and judgment for the plaintiff. Defendant excepted and appealed.

Tucker & Murphy for the plaintiff.

Moore & Rollins for the defendant.

*202 Per Curiam:

The jury have accepted the plaintiff’s version of the occurrence, and these facts fix the defendant with the legal responsibility for intestate’s death. The case is governed by the decision in Reid v. Railroad, at this term. We find no error which entitles the defendant to a new trial.

Affirmed.