#### W. M. GUILFORD, by His Next Friend, v. RECEIVERS OF THE NORFOLK AND SOUTHERN RAILWAY COMPANY.

(Filed 1 March, 1911.)

Negligence — Evidence—Instructions.

In this action for damages for personal injuries the usual and appropriate issues of negligence, contributory negligence, and the last clear chance were submitted under evidence tending to show that plaintiff, while walking on defendant’s track, became unconscious, and was injured by defendant’s train under circumstances in which the engineer could have seen his condition in time to have avoided the injury, and it was held that the instructions given by the court were not erroneous, under Sawyer’s case, 145 N. C., 24, and other like cases.

Appeal from J. S. Adams, J., at December Term, 1910, of Beaufort.

Civil action to recover damages for injury caused by alleged negligence on tbe part of defendant company. Tbe jury rendered tbe following verdict:

“1. "Was tbe plaintiff injured by tbe negligence of tbe defendant ? Answer: Yes.

“2. Did tbe plaintiff contribute to bis injury by bis own negligence? Answer: Yes.

“3. Notwithstanding tbe negligence of tbe plaintiff, could defendants, by tbe exercise of ordinary care, bave avoided tbe injury? Answer: Yes.

“4. "What damages, if any, is plaintiff entitled to recover? Answer: $500.”

Judgment on tbe verdict, and defendant excepted and appealed.

Ward & Grimes for plaintiff.

Small, MacLean & McMullan, for defendant.

Per Curiam.

There was evidence on tbe part of plaintiff tending to show that in October, 1908, plaintiff was walking along tbe railroad track, where pedestrians were accustomed to use tbe same because it shortened tbe distance for persons going in that direction, and becoming faint, be started off tbe *608track, sat down on the end of a cross-tie, became unconscious, and when in this condition was struck by a passing train and his arm crushed so that it had to be amputated, “from the shoulder”; that it was a bright, sunshining day, and at the point -where the injury occurred the track, in the direction from which the train was approaching, was straight for 495 feet, and the plaintiff, in the position he then was, could have been seen for that distance and the injury prevented by the exercise of proper care on the part of defendant’s employees in charge of the train. The evidence of the defendant tended to show that plaintiff was seen and his presence and condition noted just as the engine came around the curve, and that everything possible was then done to stop the train.

Under a charge, which is in substantial accord with our decisions, applicable to the case presented, notably Arrowood v. R. R., 126 N. C., 629; Pickett v. R. R., 117 N. C., 616; Sawyer v. R. R., 145 N. C., 24, the jury have accepted the plaintiff’s version of the occurrence, and in that view a good cause of action has been clearly established. On careful consideration we find no reversible error in the record, and the judgment of the court below must be affirmed.

No error.