#### CHARLES E. MERRILL v. SOUTHERN RAILWAY COMPANY.

(Filed 23 December, 1909.)

Railroads — Negligence—Burden of Proof — Pedestrians, Unexpected Acts of — Evidence—Nonsuit.

According to plaintiff’s evidence, in an action against a railroad company for damages for an injury alleged to have negligently been inflicted on Mm by defendant, lie was a brakeman wbo had been left by one section of a freight train, and endeavored to catch the second section. He crossed the track upon which he saw this second section was switching, and walked along the track in a path used by employees. When the train was backed down the track going in the same direction, at a speed of four miles an hour, he became dizzy from faintness and, being a distance of eighteen inches from the track, fell on it, and was injured. There was no one on the end of the last car. There was testimony as to the distance of the train from him at the exact moment of his falling, though it appeared that the train must have been less than fifteen feet. There was no evidence that a train of this character could have been stopped in time to avoid the injury, under the circumstances. Held, there was no sufficient evidence that the injury would have been averted had there been a brakeman on the last car, and as the burden was on plaintiff to show the proximate cause of the injury, which he failed to do, a motion for a judgment of nonsuit should be sustained.

Clark, C. J., did not sit on the hearing of this case.

Appeal from Joseph 8. Adams, J., September Term, 1909, of BUNCOMBE.

Civil action, to recover damages for personal injuries sustained *525by plaintiff, a brakeman in tbe employment of tbe Southern Eailway Company, at Statesville, on 13 May, 1905.

Tbe usual issues of negligence, contributory negligence and damage were submitted to tbe jury and found for plaintiff. Defendant appealed.

Locke Craig, J. H. Merrimon and J. 6r. Merrimon for plaintiff.

W. B. Bodiman and Moore & Bollins for defendant.

Per OubiaM :

Tbe Court is of tbe opinion tbat tbe motion to nonsuit should have been sustained, upon tbe ground tbat there is no sufficient evidence tbat the alleged negligence was tbe cause of tbe injury. Tbe plaintiff, according to bis own evidence, was a brakeman on tbe first section of No. Yl, a freight bound for Asheville. Having been left at Statesville, be was endeavoring to catch tbe second section of No. Yl. He crossed tbe track, upon which tbe Taylorsville train was switching, and then walked alongside tbe track, in a path used by defendant’s employees, between tbe tracks. This train backed along tbe track,, going in tbe same direction as plaintiff, at a speed of four miles an hour, with no one on tbe end of tbe last car. When plaintiff crossed tbe track and turned down it, be saw tbe Taylorsville train coming towards him. Plaintiff continued to walk on, alongside tbe track, until be became dizzy from faintness, and fell on tbe track and was injured by tbe Taylorsville train. He states tbat, before be fell, be looked back once, and this train, composed of an engine and three freight cars, was approaching him. He was eighteen inches from tbe side track when be fell; so tbat, if be bad not fallen, tbe train would have passed him safely. He states tbat tbe last time be looked back and saw tbe train it was a half rail (about fifteen feet) from him. He does not know how much time elapsed between tbe time when be turned and saw tbe train, half a rail distant, and tbe moment be fell. We-think there is no sufficient evidence tbat tbe injury could have been averted bad there been a brakeman on tbe rear end of tbe train, and tbat tbe injury, however lamentable, was an accident, which, under the circumstances, could not well have been prevented.

There is no evidence tbat this train was as far off as fifteen feet when plaintiff turned and saw it approaching. When be first saw it, as be crossed and turned down tbe track, it was three- or four rails distant and approaching him at four miles an hour. It bad gained on him, so that it was within half a rail when be last turned and saw it. How long after this it was before be fell *526on the track the plaintiff does not undertake to say. Neither he nor any other witness knows. The train was evidently about up with plaintiff at the time he fell on the track, and there is no sufdcieht evidence that it could have been stopped in time .to save him.

It is 'true witness Grlenn testifies that he has seen an engine with two cars stopped in ten feet when going four miles an hour, but he also states that he will not undertake to say in what distance this Taylorsville train could have been stopped, as he did not know how it was loaded or how many cars it had.

The plaintiff, an experienced brakeman, who saw this particular train, does not say it could have been stopped in time, and does not pretend to know how close it was to him when he fell.

It is rudimentary that negligence, to be actionable, must be the proximate cause of an injury, and that the burden of proof is on the plaintiff to make out such a case. The pffaintifPs evidence fails entirely to show that at the time he fell the train was far enough distant tó be stopped before reaching him. In this respiect his case is not helped by the evidence offered by the defendant, all of which is to the effect that plaintiff stumbled and fell across the track, almost immediately in front of the train, and that it could not possibly have been stopped before reaching him.

In this respect this case differs materially from Sawyer’s case, 145 N. C., 24. The place where Sawyer fell and remained on the track was seventy-five yards from the log train and skidder, and the evidence was plenary that it was moving at a rate of two miles per hour and could have been stopped in twenty-five or thirty feet.

The motion to nonsuit should have been granted, and it is so ordered.

Reversed.

ClaeK, C. J., did not sit on the hearing of this case.