#### J. F. HOLTON v. KINSTON-CAROLINA RAILROAD COMPANY.

(Filed 1 October, 1924.)

Carriers — Railroads—Crossings—Negligence—Evidence—Nonsnit.

It is tbe duty of a person driving an auto-truck to look and listen in both directions for approaching trains before attempting to drive across a railroad track; and in an action to recover damages to the truck, caused by colliding with a passing train, under such circumstances, a motion as of nonsuit should be granted when it appears from all the evidence that the proximate cause of the injury was his attempting to cross the track when there were no obstructions to his view and he had heard the train approaching and could have perceived it in time to have prevented the injury if he had observed the duty required of him.

Civil action-, tried before Horton, J., at June Term, 1924, of Lenoik.

Tbe action is to recover damages for destruction of plaintiff’s auto truck, caused by alleged negligence of defendant in backing one of its trains on tbe tracb at a railroad crossing at or near tbe city of Kinston, N. 0., in April, 1920. On issue of negligence, contributory negligence and damages there was verdict for plaintiff. Appeal by defendant, assigning for error refusal of its motion for nonsuit.

Sutton & Greene for plaintiff.

Rouse & Rouse for defendant.

Hoke, C. J.

On careful consideration of tbe record and evidence contained therein, tbe Court is of opinion that defendant’s motion for nonsuit should have been allowed. It is tbe recognized duty of a person on or approaching a railroad crossing to “look and listen in both directions for approaching trains if not prevented from doing so by tbe fault of tbe railroad company or other circumstances clearing him from blame,” and where, as to persons other than employees of tbe company, there has been a breach of this duty clearly concurring as a proximate cause of the injury, recovery therefor is barred. Plyler v. R. R., 185 N. C., pp. 358-361; Davidson v. R. R., 171 N. C., p. 634; Coleman v. R. R., 153 N. C., p. 322; Trull v. R. R., 151 N. C., p. 545.

In the present case the evidence on.part of plaintiff shows that he was driving his' truck along the highway approaching a crossing of defendant road at about eight miles an hour, the railroad being on a rise two feet or more above the general grade of the highway, and he ran his truck up on the crossing in the way of a train backing on the crossing, thus bringing about a collision by which the truck was destroyed. Plaintiff saved himself from personal harm by jumping from the truck as the front wheels got on the track.

*278According to tbe facts in evidence tbe train was running 15 or 20 miles per bonr and tbe employees of tbe company testify that tbe engine bell was ringing as tbe .train backed towards tbe crossing and plaintiff could easily bave seen tbe train if be bad looked.

Plaintiff does not deny that tbe bell was ringing, and be himself testifies tbat be could bave seen down tbe track thirteen to fifteen hundred feet tbe way tbe train was approaching and didn’t look tbat way. And while be says tbat be beard no signal whistle, be also testifies, as we understand bis testimony, tbat be bad beard tbe whistle of tbe train some distance back but thought it was an automobile.

In our opinion and according to plaintiff’s own showing, tbe collision was clearly due to bis own default in not keeping a proper lookout, and in such ease, on motion, in apt time a judgment of nonsuit should bave been entered. Davis v. R. R., 187 N. C., pp. 147-153; S. v. Fulcher, 184 N. C., p. 665.

This will be certified tbat motion for nonsuit be allowed.

Reversed.