#### HENRY COLEMAN v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 2 November, 1910.)

1. Railroads — Crossings—Look and Listen — Duty of Traveler — Contributory Negligence.

A railroad crossing is itself a notice of danger, and all persons approaching it are bound to exercise care and prudence; and when the conditions are such that a diligent use of the senses would have avoided the injury, a failure to use them constitutes contributory negligence.

*3232. Same — Last Clear Chance.

It is the duty of a passenger before attempting to go across a railroad track at a public crossing to both look and listen for approaching trains, and when by the exercise of ordinary prudence in this respect he could have avoided the injury complained of, he has failed to avail himself of the last clear chance, and his contributory negligence will bar his recovery.

3. Same — Place to Look.

By stopping, looking and listening before reaching a railroad right of way at a public crossing, and at a place where the view is obstructed by houses, the plaintiff has not performed his duty, or exercised the care required before crossing the track; and it appearing that the right of way extended some sixty-five feet from the track, with an unobstructed view, and that by stopping thereon before reaching the track the plaintiff could have seen, or have become aware of, the approaching train in time to have avoided the injury complained of, in failing to do so he is guilty of contributory negligence, the proximate cause of the injury, and his action is barred thereby.

Appeal from Ferguson, J., at the July Term, 1910, of Columbus.

Motions to nonsuit were overruled and following issues submitted ;

1. Was the plaintiff injured by the negligence of the defendant as alleged in the complaint ?

2. Did the plaintiff by his own negligence contribute to his own injury?

3. What damage is the plaintiff entitled to recover?

The jury answered the first issue “Yes,” the second issue “No,” and the third issue, “Four thousand dollars.”

From the judgment rendered defendant appealed.

McIntyre, Lawrence & Proctor and David J. Lewis for plaintiff.

Junius Davis and J. B. Schulken for defendant.

BeowN, J.

The plaintiff was injured while in the act of crossing defendant’s track driving a horse and buggy at a public crossing at Fair Bluff, by coming in collision with a rapidly moving engine and train.

Upon his examination in chief plaintiff, after testifying that *324after be bad turned out from tbe road to tbe right to cross track said, “I don’t know bow far I went, but I stopped, looked and listened to see if any train was coming.”

Plaintiff further stated: “After I stopped, looked and listened and beard nothing, I started off in a slow walk and did not know there was a train coming until I got on tbe track, and when I saw it, it was in ten feet of me.”

•Upon cross-examination plaintiff goes more into detail and states definitely when and where be looked and listened. He says that after be got into tbe road that led to tbe crossing be stopped, looked and" listened to see if any train was coming and beard nothing; that tbe view from where be stoppqd was obstructed by three or four bouses, but that when be got to tbe right of way be could see some distance up or down the track.

Plaintiff further stated that there was nothing on tbe right of way to obstruct bis view; that tbe edge of tbe right of way was 65 feet from tbe center of tbe track; that after be got on tbe right of way be could see up tbe track in tbe direction,, tbe train was coming one-quarter of a mile; be did not look for tbe train after be got on tbe right of way, for be bad looked before and thought if tbe train was coming be could bear it; did not think be was on tbe right of way when be stopped, looked and listened. If be bad looked after be got on tbe right of way be might have seen it; was riding in a buggy with tbe curtains buttoned down both sides and back.

N. A. McQueen testified that be beard tbe train blow some distance up tbe road, probably a mile; beard tbe danger signal given and beard tbe roar of tbe train.

E. E. Connor testified that tbe edge of tbe right of way was 60 or 65 feet from tbe track; that after Coleman got to tbe right of way there was nothing to prevent bis seeing tbe train, as tbe view was unobstructed, and be could see tbe train three-quarters of a mile off; be beard the train signal; beard tbe train roaring and saw it coming.

Defendant introduced no evidence.

In view of tbe great number of uniform decisions by this Court bearing upon this question, it would seem to be plain that bis Honor erred in denying defendant’s motion.

*325“Travelers upon a common highway which crosses a railroad, and the company running its trains, have mutual and reciprocal duties and obligations.” Thompson on Negligence, 1604, 1605.

From its very nature, and for public convenience, the train has the right of way, but the law imposes upon the engineer the duty to give signals and to exercise vigilance in approaching crossings in order to avoid injury.

The law imposes the equal duty upon the traveler when he reaches a crossing and before attempting to go on the track to both look and listen for approaching trains, for the traveler by doing so, if there is nothing in his way, can most certainly prevent a collision and save himself from harm. When he reaches the track, it is no great hardship imposed upon the traveler to require him to exercise ordinary prudence and to east his eye up and down the track. By so doing he has the'last and most certain chance to prevent collisions and to save himself as well as the train, its crew and passengers from possible injury.

In respect to cases of collision at crossings Judge Thompson says: “The leading rule is that there can be no recovery of damage where the negligence of the traveler contributed proximately to the injury, although the railway company was also guilty of negligence.” Negligence, sec. 1605.

A railroad crossing is itself a notice of danger, and all persons approaching it are bound to exercise care and prudence, and when the conditions are such that a diligent use of the senses would have avoided the injury, a failure to use them constitutes contributory negligence and will be so declared by the court.

Mr. Beach says: “In attempting to cross, the traveler must listen for signals, notice signs put up as warnings, and look attentively up and down the track; and a failure to do so is contributory negligence which will bar recovery. A multitude of decisions of all the courts enforce this reasonable rule.”

There are of course exceptions to this, as well as most other' rules, but where the traveler “can see and won’t see” he must bear the consequences of his own folly. His negligence under such conditions bars recovery because it is the proximate cause *326of bis injury. He has tbe last opportunity to avoid injury and fails to take advantage of it.

Tbis is tbe law as laid down by practically all tbe appellate courts in tbis country as well as by tbe Supreme Court of tbe United States.

Tbe case of Northern Pacific R. R. v. Freeman, 174 U. S., 379, is a case “on all fours” witb tbis. Tbe two cannot be distinguished.

In tbat case it is said in tbe syllabus, “Tbe oral testimony on tbe subject tended to sbow tbat Freeman neither stopped, looked nor listened before attempting to cross tbe track. Held, tbe testimony tending to sbow contributory negligence upon tbe part of Freeman was conclusive, and tbat nothing remained for tbe jury, and tbat tbe company was entitled to an instruction to return a verdict in its favor.”

In tbe opinion Mr. Justice Brown says: “She was (under tbe circumstances) bound to listen and look before attempting to cross the railroad track in order to avoid an approaching train and not to walk carelessly into a place of possible danger. Had she used her senses, she could not have failed both to bear and see tbe train which was coming. If she omitted to use them and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain .about them. If using them she saw tbe train coming and yet undertook to cross the track, instead of waiting for tbe train to j>ass, and was injured, tbe consequences of her mistake and temerity cannot be cast upon the defendant.”

Further on in the opinion the learned justice comments on such conditions as tend sometimes to excuse the traveler, such as an obstructed view and the like, none of which exist in tbe case at bar.

Tbe “elementary doctrine” is declared by tbe Supreme Court of tbe United States in R. R. v. Houston, 95 U. S., 697; Schofield v. R. R., 114 U. S., 615; Stead v. Imp. Co., U. S., 161, and other cases.

Rut why go outside our own Reports. The doctrine tbat such negligence bars recovery has been consistently recognized by *327this Court in at least thirty-five cases, beginning with Parker v. R. R., 86 N. C., 221, and ending with Mitchell v. R. R., at this term.

A leading case, and one in which the subject is thoroughly considered, is Cooper v. R. R., 140 N. C., 212, wherein Mr. Justice Hoke quotes at length the rule as stated by Beach and says: “This rule is so just in itself and so generally enforced as controlling that citation of authority is hardly required.”

In Trull v. R. R., 151 N. C., 550, it is again said by the same learned justice that “where the view is unobstructed, a traveler who attempts to cross a railroad track under ordinary and usual conditions without first looking, when by so doing so he could note the approach of a train in time to save himself by reasonable effort, is guilty of contributory negligence,” and the judgment was that the plaintiff could not recover, although the defendant was negligent.

When must the traveler look? A writer in the Personal Injury Law Journal of July, 1910, declares that all conflicts of opinion on this subject may be avoided by adopting the common-sense rule that the traveler should look when about to enter upon the track.

“A look when about to enter the zone of danger from an approaching car is not only the most availing, but it is then that the most accurate and reliable judgment can be formed as to the safety of an attempt to cross.” Personal Injury Journal, page 11; see also Wecker v. Brooklyn Ry. Co., 120 N. Y. Sup., 1020.

It is now well established law in New York State that an omission to look is only excusable in the situation where the precaution was shown by the circumstances to have been an unavailing one. In other words, that the duty of looking when one approaches a street railway crossing is not adequately discharged by merely looking as the dangerous point is approached, and then when it is reached going blindly forward. (Baxter v. Syracuse R. Co., 190 N. Y., 439; Fowler v. N. Y. C. R. Co., 74 Hun., 144; Coleman v. N. Y. C. & H. R. Co., 98 A. D., 349; affirmed 188 N. Y., 564. See also Cranch v. B. H. R. Co.. 186 N. Y., 310.)

*328This is tbe standard of prudence fixed by Trull’s case, supra, where it is held tbe traveler must look “in time to save himself,” and by Mitchell’s case, at present term, Inman’s case, 149 N. C., 125, as well as by numerous other decisions of this Court.

In Mitchell’s case plaintiff had eleven feet unobstructed view up and down the track before reaching it. He failed to look, and it was held that his negligence was the proximate cause of his injury and that he could not recover.

In the case under consideration plaintiff’s own witnesses, except himself, testify that the engineer gave the signals and they heard the whistle, and that they could see the approaching train.

Plaintiff states that the whistle, did not blow and that no signal was given, but admits that when he looked for the train he was not even on right of way which extended 65 feet each way from center of the single track railroad.

When he did look his view was obstructed by houses. Plaintiff testified that from the edge of the right of way up to the track the view up and down it is clear, and that he did not look up and down the track after he passed the edge of the right of way, 65 feet from the track, when he would have had an unobstructed view. In other words, plaintiff looked when he could not see, but at the time and place when he could plainly see an approaching train in ample time to avoid a collision he did not look. He was so careless and indifferent that he did not see the train or hear it until he was on the track and the engine was within ten feet of him. The authorities are uniform that such inexcusable negligence is the proximate cause of the injury and bars recovery.

The motion to nonsuit should have been sustained and the action dismissed. It is so ordered.

Eeversed.