#### ANGIE C. MANUEL, Admx., v. SOUTHERN RAILROAD COMPANY.

(Filed 12 November, 1924.)

1. New Trials — Newly Discovered Evidence — Motions.

Held, in this case, the affidavits tiled on motion for a new trial in the Supreme Court for newly discovered evidence, are insufficient.

2. Carriers — Railroads — Negligence — Contributory Negligence — Evidence — Nonsuit.

Evidence in this case that plaintiffs intestate was killed on a dark night by defendant’s train approaching without light or warning, while crossing its track, raised issues as to defendant’s negligence, and the contributory negligence of the intestate, and defendant’s motions to non-suit after the close of the plaintiff’s evidence and renewed after the close of all the evidence, were properly denied.

Appeal by defendant from Bryson, J., at August Term, 1924, of G-uileokd.

Civil action to recover damages for an alleged negligent injury, resulting in the death of plaintiff’s intestate.

*560Upon denial of liability and tbe usual issues of negligence, contributory negligence and damages, being submitted to tbe jury, there was a verdict and judgment for tbe plaintiff. Defendant appeals, assigning-errors.

II. A. Jones and R. 0. Slrudwich for plaintiff.

Wilson & Frazier for defendant.

Stacy, J.

The defendant, in limine, lodged a motion for a new trial on the ground of newly discovered evidence. It is alleged that the information wbicb the defendant considers vital and important to its defense, came to its attention after the adjournment of the term of court at wbicb the ease was tried, and after the appeal was docketed bere. Allen v. Gooding, 174 N. C., 271. From an examination of the affidavits filed by both sides in support and denial of said motion, we are of opinion tbat it must be overruled. The showing made in this respect falls short of the requirements laid down in Johnson v. R. R., 163 N. C., p. 453.

There is evidence on tbe record tending to show tbat plaintiff’s intestate was killed on tbe night of 9 October, 1922, “at a place designated as 12th Street where it crosses tbe railroad” in tbe village of White Oak, near Greensboro, N. 0. Tbe deceased was a resident of said village, lived on Spruce Street, near tbe tracks of defendant company, and bad gone across tbe railroad to an ice-bouse to get some ice for use in bis borne. On bis return and as be was crossing tbe railroad be was struck by defendant’s passenger train No. 35 and killed. There was evidence tbat tbe train was running-without a headlight; tbat it gave no warning or signal of its approach; and tbat it was moving at a rapid rate of speed. It was a dark, rainy night.

Tbe evidence for the defendant was quite different from tbat offered by the plaintiff. It tended to exculpate the defendant from all liability and to show tbat plaintiff’s intestate was guilty of contributory negligence; but the crucial facts have been resolved by the jury in favor of plaintiff’s claim. On the evidence, the ease was properly submitted to the jury. Tbe trial court was correct in overruling the defendant’s motion for judgment as of nonsuit, entered at the close of plaintiff’s evidence and renewed at the close of all the evidence. On motion to nonsuit, the evidence must be taken in its most favorable light for the plaintiff, and she is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. Oil Co. v. Hunt, 187 N. C., 157; Christman v. Hilliard, 167 N. C., 4.

*561Tbe instant ease is not unlike Morrow v. R. R., 147 N. C., 623, where a pedestrian was using tbe railroad track as a walkway in tbe town of Hickory, at a place where it was customary so to use tbe track, and was struck by a train in tbe night time and injured. There was evidence tending to show that tbe engine in question bad no lights and bad given no signal or warning of any kind. Under these circumstances, it was held that tbe question of contributory negligence was one for tbe jury. This ease was approved in principle in Norris v. R. R., 152 N. C., 512.

In these and other like decisions, tbe pedestrian, by default of tbe railroad company, was placed in a position where “to look and to listen,” tbe ordinary way that tbe average man avoids tbe danger in such instances, was not likely to avail him, and tbe cases were therefore .excepted from tbe doctrine announced in Neal v. R. R., 126 N. C., 634, Exum v. R. R., 154 N. C., 413, and many others, all of which are reviewed in a valuable and discriminating opinion by tbe present Chief Justice in the recent case of Davis v. R. R., 187 N. C., 147.

A careful perusal of tbe record leaves us with tbe impression that tbe case has been tried substantially in agreement with tbe law bearing-on tbe subject, and we have discovered no ruling or action on tbe part of tbe trial court which we apprehend should be held for reversible or prejudicial error. Tbe verdict and judgment will be upheld.

No error.