#### SAMUEL TYSON, Administrator v. THE EASTERN CAROLINA RAILWAY COMPANY.

(Filed 5 November, 1914.)

Railroads — Negligence — Persons on Track — Helpless Condition — Outlook Ahead — Insufficient Headlight — Trials—Evidence.

Tbe plaintiff’s intestate was killed at dusk on the defendant’s railroad track. There was evidence tending to show that he had been seen drinking and staggering some fifteen minutes before the occurrence, and that while on his way home he came upon the defendant’s roadway and sat upon the end of a cross-tie, and while sitting therg with his head and body leaning forward upon his knees, the defendant’s train came upon him, using a poor quality of oil for its headlight, striking his body in the region of the ribs, and causing his death; that the track was straight and unobstructed for a mile at this place, which was' up-grade, that a person sitting upon the track could have been seen for 300 yards, and that by applying the brakes the train could have been stopped in 50 yards. Upon a motion to nonsuit, it is Held, that contributory negligence being admitted, the evidence was sufficient to be submitted to the jury upon the issue of the last clear chance as to whether the engineer could have seen the intestate sitting upon the cross-tie, if the headlight had been a proper one, or by a diligent outlook ahead he could have done so in time to'have avoided killing him. Holder v. R. R., 160 N. C., 7 ; Stout v. R. R., 164 N. C., cited and distinguished.

Appeal by defendant from Daniels, J., at February Term, 1914, of GrEEENE.

Civil action, tried upon these issues:

1. Was tbe plaintiff’s intestate injured by reason of tbe negligence of tbe defendant ? Answer: Tes.

2. Did tbe plaintiff’s intestate by bis own negligence contribute to bis own injury and death? Answer: Yes.

*2163. Notwithstanding the negligence of the plaintiff’s intestate, could the defendant by the exercise of reasonable care have avoided the injury to the plaintiff’s intestate? Answer: Tes.

4. What damage, if any, is the plaintiff entitled to recover of the defendant ? Answer: $500.

G. V. Gowper and J. Paul Frizzelle for plaintiff.

John L. Bridgets for defendant.

BeowN, J.

The defendant in apt time moved to nonsuit, which motion was overruled. This brings up for review the sufficiency of the evidence. It is well settled that it must be construed and accepted in the light most favorable for the plaintiff. The testimony tends to prove that the intestate of the plaintiff was killed by the defendant’s train on its track on 7 August, 1911; that at the time he was 57 years old, in good health, and that his capacity and ability for work was good; there were four members of his family, whom he helped to support, and he had an earning capacity of $300 to $400 per year.

The evidence tends to prove that his body was broken up and that the blow that killed him was one on the side of his body in the region of the ribs; that at the point where he was killed the railroad was straight and clear of all obstruction for more than a mile in each direction, and that a man upon the track could have been seen at the time the intestate was killed 300 or 400 yards easily from either direction; that he was killed on an up grade, and that the train could have been stopped, if the brakes had been applied, within a distance of 50 yards.

The testimony tends further to prove that the intestate was in a store at Maury fifteen minutes before he was killed; that he was drinking and staggered; that on leaving the store he went in the direction of his home; that on reaching the railroad track he seated himself on the end of a cross-tie; that at the time when the defendant’s engine approached him, both the head and body of the intestate were bent over and rested upon his knees. At the time, the testimony tends to prove that the engine had a very poor oil headlight.

It is useless to consider any matters relating to the first and .second issues, because it is admitted that the intestate was guilty of contributory negligence, and, therefore, his administrator should not be permitted to recover unless there is sufficient evidence to support the finding of the jury upon the third issue, to the effect that, notwithstanding the negligence of the intestate, the defendant’s engineer, by the exercise of ordinary care, could have avoided the injury. McAdoo v. R. R., 105 N. C., 140; Abernethy v. R. R., 164 N. C., 93.

The principle of law governing this case is well stated by Mr. Justice Allen in Holder v. R. R., 160 N. C., p. 7, to which we give our full *217approval: “As no,presumption of negligence arises from tbe billing of tbe deceased, and as tbe engineer bad tbe right to presume up to tbe last minute be would get off tbe cross-tie, if be was sitting up, tbe burden was on tbe plaintiff to prove tbat bis appearance while on tbe cross-tie was such as to lead a man of ordinary prudence in charge of a train to believe be was unconscious or helpless, and we find nothing in tbe evidence tbat amounts to more than conjecture or speculation as to this fact.”

This case differs materially from tbe Holder case in tbat in this case we have tbe positive evidence tbat tbe deceased, immediately before be was killed, was huddled up and bent over with bis bead and body on bis knees, sitting on tbe end of a cross-tie, in such condition, tbat must have indicated to a watchful engineer tbat be was practically helpless.

In a similar case tbe Supreme Court of Kentucky said: “We do not think, as a principle of law, it can be stated tbat where a trespasser is seen sitting upon tbe track with bis bead in bis bands and bis bands resting on bis knees, apparently asleep or unconscious, tbe presumption is tbat be will bear and obey signals of tbe engineer, warning him of tbe approach of tbe train. This undoubtedly would be true if tbe trespasser were walking or standing on tbe track. In tbat case tbe very fact tbat be was moving, or standing up, would indicate tbat be was not asleep or unconscious, but bad possession of bis faculties, and tbe engineer would have tbe right to suppose tbat be would bear and obey tbe danger signals. But tbe same would not necessarily prevail where tbe situation is as detailed in this case. A man seated on a cross-tie of a railroad track, apparently asleep or unconscious, presents an unusual, not to say extraordinary, spectacle, and we think it was tbe province of tbe jury to determine whether or not an engineer of ordinary prudence, seeing a man so seated, ought not to commence checking tbe train in time 'to prevent injuring him, if it should transpire tbat be was unconscious or asleep.” Starrett v. R. R., 110 S. W. Rep., 283, quoted in Smith v. R. R., 162 N. C., p. 35.

There was no evidence in tbe Holder case tbat tbe position of tbe body during life was as described by tbe witness in this case. There is no evidence in tbat case tbat tbe bead and body were bent over on tbe knees at tbe time tbe man was injured.

Mr. Justice Allen says: “Tbe circumstance tbat tbe bead' was bent over at tbe time tbe body was found, chiefly relied on by tbe plaintiff, is explained by tbe strong probability tbat a blow causing death could not have been received without making some change in tbe position of tbe body, and when death ensued it was natural for tbe bead to drop.”

There is evidence in this ease tbat tbe engineer, by keeping a watchful lookout, with a good headlight, could have seen tbe intestate in tbe posi*218tion described by tbe witnesses, and, going up grade, could bave stopped bis train witbin 50 yards. There is evidence tbat be bad a very poor oil beadligbt, and tbat it was about dusk at tbe time when bis train killed tbe intestate.

Taking all of these facts together, we think there is sufficient evidence to bave gone to tbe jury for their consideration to tbe effect tbat if tbe engine bad been properly equipped with a proper beadligbt, and tbe engineer bad kept a diligent lookout ahead of him, be could bave discovered, by reasonable care, tbe condition of tbe intestate and could bave stopped bis train in time to bave saved bis life.

The case of Stout v. R. R., 164 N. C., p. 384, is relied upon by tbe defendant. We must admit tbat tbe syllabus of tbat case is apparently an authority for tbe defendant’s position, but an examination of tbe original record shows quite a distinction between tbe two cases.

In tbe Stout case tbe evidence of tbe witnesses shows tbat be was sitting on tbe crossdie with bis elbows on bis knees, and bis bead bent. A double-header freight train came along and tbe engineer evidently discovered tbe position of tbe deceased, for tbe train blew repeatedly and there was evidence tending to prove tbat it could not bave been stopped in time to save tbe life of tbe deceased. The Court was of opinion, upon an analysis of tbe evidence, tbat it fell witbin tbe principle laid down in tbe Solder case. ■ ,

We think tbe case at bar differs materially from both.

No error.