#### H. T. OSBORNE, Administrator, v. SOUTHERN RAILWAY COMPANY.

(Filed 30 October, 1912.)

Railroads — Crossings — Signals — Negligence — Look and Listen— Contributory Negligence — Evidence — Nonsuit — Questions for Jury.

In an action for damages against a railroad company for the negligent killing of plaintiffs intestate by the defendant’s train while crossing its track on a public road in a buggy with another, *310there was evidence tending to show that, before attempting to cross the track, the intestate stopped, looked, and listened, and did not see or hear the approaching train until the horses were on it; and that there was an obstruction to the view which rendered it impossible to sooner see the train; that the intestate could have been seen by the engineer on the train a distance of 300 or 400 feet, and conflicting evidence as to whether the usual signals for the crossing had been given by those in charge of the locomotive: Held, a charge by the court, under this evidence, that the plaintiff’s cause of action was barred by the contributory negligence of the intestate, would be an expression of opinion by the court upon the question as to whether the intestate had exercised the care required of him under the circumstances, which is prohibited by the statute. Revisal, sec. 535. Cooper v. R. R., 140 N. C., 209; Mayes v. R. R„ 119 N. C., 758, cited and applied.

Appeal by defendant from Whedbee, J., at July Term, 1912, of GrRANVILLE.

The facts are sufficiently stated in tlie opinion of the Court by Mr. Justice Walker. •

B. 8. Royster for plaintiff.

Hicks & Stem and T. T. Hicks for /defendant.

Walker, J.

Plaintiff’s intestate was struck by one of defendant’s engines and killed, while riding on a wagon with J. E. Puckett over a crossing. There was evidence to the effect that the men in the wagon looked and listened and did not hear or see the train which was approaching. They could not see it because of obstructions. The plaintiff’s witness, J. E. Puckett, testified: “When I got there, I stopped, looked, and listened. Neither saw nor heard the train before the horses were on the track; I was unable to see it on account of the orchard, fence, honeysuckle vines, and the cut.” - He also stated that a train could not be seen until he had reached a point a few feet from the track, or very near it. There was also evidence that the .engineer did not give any signal for the crossing by blowing the whistle or ringing the bell of the engine, and evidence to the contrary. There was evidence tending to show that a person on the crossing could have been seen by the engineer when 300 or 400 feet from it. The evidence upon the material question in the case was conflicting.

*311Defendant requested tbe court to enter a judgment of non-suit upon tbe evidence, as plaintiff’s intestate was guilty of sucb contributory negligence in driving upon tbe crossing, without looking or listening, as barred bis recovery. Tbe judge could not bave done so without deciding an issue of fact, which be is forbidden to do, that being tbe function of tbe jury. Pell’s Eevisal, sec. 53 S, and cases cited in note.

Tbe evidence favorable to defendant’s view of tbe case may be ever so strong and persuasive, but if there is a conflict of testimony, it must be left to tbe jury, and they must find tbe facts. This is a case where there was a serious dispute as to tbe facts, which, of course, carried tbe ease to tbe jury.

It is our duty, upon a motion for a nonsuit, to consider tbe evidence in tbe view most favorable to tbe plaintiff, for at least one reason, which is, that tbe jury may adopt bis version of tbe facts as tbe true one. It would be contrary to all our decisions to discard tbe proof in bis favor and consider only that favorable to tbe defendant, or to permit tbe latter to overthrow tbe former, even if it is more reasonable and convincing. Sucb a course would contravene tbe express terms of tbe statute, and would nullify its plain and explicit injunction, that we, as judges, should confine ourselves to tbe law of tbe case and leave tbe finding of facts to tbe jury.

Tbe ruling of tbe court is sustained by Cooper v. R. R., 140 N. C., 209, in which Justice Hoke said: “(1) A traveler on tbe highway, before crossing a railroad track, as a general rulé, is required to look and listen to ascertain whether a train is approaching; and tbe mere omission of the trainmen to give tbe ordinary or statutory signals will not relieve him of this duty: (2) Where tbe view is unobstructed, a traveler who attempts to cross a railroad track under ordinary and usual conditions without first looking, when, by doing so, be could note tbe approach of a train in time to save himself by reasonable effort, is guilty of contributory negligence. (3) Where tbe view is unobstructed, a traveler may ordinarily rely upon bis sense of bearing, and if be does listen, and is induced to enter on a public crossing because of tbe negligent failure .of tbe company to give the *312ordinary signals, tbis will usually be attributed to tbe failure of tbe company to warn tbe traveler of tbe danger, and not imputed to bim for contributory negligence. (4) There may be certain qualifying facts and conditions wbicb so complicate tbe question of contributory negligence tbat it becomes one for tbe jury, even tbougb there has been a failure to look or listen, and a traveler may, in exceptional instances, be relieved of these duties altogether, as when gates are open or signals given by watchman, and tbe traveler enters on tbe crossing reasonably relying on tbe assurance of safety.”

Applying these principles to tbe case, it will appear by a bare reading of tbe evidence tbat it should not have been withdrawn from tbe jury by granting a nonsuit. Tbe jury, by their verdict, evidently found tbat tbe intestate and J. E'. Puckett did look and listen, in tbe exercise of tbat degree of care characteristic of tbe man of ordinary prudence, and, further, tbat no signal from tbe approaching train was given. Hinkle v. R. R., 109 N. C., 473; Alexander v. R. R., 112 N. C., 720; Russell v. R. R., 118 N. C., 1098; Norton v. R. R., 122 N. C., 910.

In Mesic v. R. R., 120 N. C., 490, after stating tbat it is tbe duty of a traveler on tbe highway, when be approaches a railroad crossing, to look and listen, even tbougb tbe railroad may have been negligent, tbe Court says: “Tbe rule, however, does not prevail where to look would be useless on account of obstructions, natural in themselves, or such as bad been placed by accident or design by tbe company’s employees on their tracks. . . . and when at tbe same time tbe engineer bad failed to sound tbe whistle or ring tbe bell for tbe crossing, and in consequence of tbis failure tbe plaintiff bad been induced to go upon the track and take tbe risk.” Tbe principal authorities are cited in Cooper v. R. R., supra, and explained, and no further reference to them or comment on them is required to clarify tbe subject. Tbe principles governing such cases as these are too well known and too firmly established to be misunderstood or to require any vindication.

It cannot now be successfully argued, because there was evidence tbat tbe intestate could have seen tbe coming train, tbat therefore be did see it. His opportunity to see and to bear was *313a circumstance, if it existed, which the jury could consider in ascertaining whether he did see, but was not conclusive evidence of the fact. In Mayes v. R. R., 119 N. C., 758, the present Chief Justice says: “We do not understand the defendant to complain that the jury was not instructed that the looking and listening must be done with proper care, but his proposition is, that if the plaintiff looked and listened and might have seen or heard, and did not see or hear, as a proposition of law he did not look and listen. That, however, is a matter of fact, and not a proposition of law. By looking and listening’ the jury must have understood, under the terms of the charge, ‘looking and listening with proper attention.’ Defendant is traveling in a circle when he argues that if the plaintiff looked an,d listened with care, he saw or heard the approaching train, if he could have done so; and if he did not see and hear it, when he might have done so, then he did not, with proper attention, look and listen.” This answers defendant’s .main contention.

There was no error in the case, that we have been able to discover, after a careful examination of it.

No error.