#### GEORGE C. THOMPSON v. PURCELL CONSTRUCTION COMPANY and WINSTON-SALEM SOUTHBOUND RAILROAD COMPANY.

(Filed 13 November, 1912.)

Railroads — Contributory Negligence — Evidence—Nonsuit.

In an action to recover damages for a personal injury, it appeared from tbe plaintiff’s evidence that tbe defendant construction company was engaged in constructing for its codefend-ant, a railroad company, a cut under tbe track of another railroad company for tbe purpose of crossing beneath it, at right angles, wbicb was deep in tbe center where it passed, extending in each direction a considerable' distance; that with full knowledge and appreciatioh of tbe danger, tbe plaintiff, on a dark night, attempted to walk the exposed sills over tbe cut, when it was too dark for him to, see them, when be could safely have used a roadway about a quarter of a mile distant, and fell through a space left open between tbe sills, to bis injury: Held, upon his own evidence, tbe contributory negligence of the plaintiff barred bis recovery, and a motion to nonsuit upon tbe evidence should haye been allowed.

Appeal by defendants from 0. H. Allen, J., at April Term, 1912, of DavidsoN.

Civil action. At tbe close of tbe testimony of plaintiff, who was tbe only witness examined, tbe defendants moved to non-suit. Motion overruled. Tbe defendants, tbe construction company and tbe railroad company, appealed.

Tbe facts are sufficiently stated in the opinion of tbe Court by Mr. Justice Brown.

Emery E. Baper, McCrary & McCrary for plaintiff.

Phillips & Bower, F. C. Robbins, Watson, Button & Watson for defendants. '

*391BROWN, J.

Tbe plaintiff was tbe only witness examined, and from bis testimony it appears tbat tbe construction company was engaged in constructing for its codefendant, tbe Southbound Eailroad, a cut under tbe tracks of tbe Southern Eail-way near Lexington. This cut was three-quarters of a mile in length, and deep in tbe center where it passed under tbe Southern’s tracks, and extended about half a mile south of tbe Southern Eailway, and about a quarter of a mile north, and crossed under tbe Southern at right angles.

Tbe plaintiff testified tbat be attempted to cross in tbe night on tbe Southern Eailway track lying north of tbe center track by walking on tbe cross-ties, tbe earth baying all been taken out below tbe two north tracks; tbat be knew tbe condition; tbat be knew it was a dangerous place; tbat bis little boy was just in front of him, and tbat be called to bis boy to be careful in crossing; tbat it was so dark be could not see. Plaintiff said also, “I could not see tbe cross-ties when walking. I could not see tbe space between tbe cross-ties. I bad gone 12 or 15 feet safely between tbe rails on tbe right-hand track. I undertook to cross from tbat track to tbe middle track. I knew there was an opening between tbe two tracks, and I stepped through it.” “I bad crossed this same trestle three times tbat day. I bad crossed it before. I knew very .well tbe conditions there, and knew it was a dangerous place.”

In view of tbe admitted facts tbat plaintiff was not in tbe employment of either of these defendants, and was not injured on their roadway, and tbat be could have gone safely home by walking a quarter of a mile to tbe north of tbe Southern Eail-way trestle, it ,is difficult to see what duty these defendants owed plaintiff tbat they failed to perform.

But it is manifest from bis own testimony tbat plaintiff was guilty of such inexcusable beedlessness as bars recovery under tbe accepted doctrine of contributory negligence.

Instead of taking tbe path of safety, although only a quarter of a mile longer, be voluntarily and unnecessarily undertook to cross a railway trestle, over a deep excavation, knowing all tbe *392conditions and that it was a dangerous place tO' cross, especially on a dark night. He says he knew there was an opening between the two tracks before he attempted to cross from one track to the other, and that he stepped in the dark into this open space and fell through.

No prudent man would have attempted such an act, and at the time of his injury, if he was doing what no prudent man would have done, he is guilty of contributory negligence, and his own careless act was the proximate cause of his injury. Neal v. Town of Marion, 126 N. C., 412; Hinshaw v. R. R., 118 N. C., 1047.

It is settled that the defendants may avail themselves of their plea of contributory negligence on the motion to nonsuit, as the facts are undisputed and arise upon plaintiff’s evidence. Wright v. R. R., 155 N. C., 325.

The judgment of the Superior Court is reversed, and the motion to- nonsuit allowed.

Reversed.