#### JAKE WARD BATCHELOR, Administrator of the Estate of B. W. Batchelor, Deceased, v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 26 September, 1928.)

1. Railroads — Operation—Injuries to Persons on Track — Negligence— Warnings, Watchmen, etc.

In an action against a railroad company to recover damages for a personal injury alleged to have been negligently inflicted by a collision with defendant’s train at a country grade crossing of a county highway with defendant’s railroad track, evidence that the defendant did not maintain a watchman, gates, or signal, gongs at the place is not evidence of its actionable negligence when there is no evidence that such was necessary owing to unusual dangerous conditions existing at this particular place, such as obstructions to conceal the approach of trains, and where the evidence tends only to show that all the usual signs had been placed there, signals or warnings given, by the engineer, and the view was clear and unobstructed, and that the defendant was not otherwise negligent, a judgment as of nonsuit is properly entered.

2. Same — Evidence—Last Clear Chance.

Where the question involved in an action for damages against a railroad company for the negligent killing of plaintiff’s intestate by a collision at a highway crossing is whether the defendant’s engineer should have stopped his train after the collision in time to have avoided the killing, evidence of a witness who had had experience as a fireman, that the train could have been stopped within the distance after applying the brakes, but that he did not have knowledge as to the time required to *85apply the brakes is but a conjecture, and no sufficient evidence to be submitted to tbe jury in tbe absence of legal evidence as to tbe time it would bave taken to apply tbe brakes.

S. Evidence — Hearsay—Res Gestee.

Tbe declarations of a party immediately after an accident are not admissible in evidence as a part of tbe res gestee when it appears tbat tbe declaration was a narration of past occurrence ratber tban tbe facts talking through the party.

Civil actioN, before MidyeUe, J., at April Term, 1928, of Nash.

Tbe plaintiff is tbe administrator of Ward Batcbelor.

Tbe evidence tended to- sbow tbat plaintiff’s intestate was a successful farmer, about 64 years old, and tbat on or about 22 December, 1924, be was returning from Nashville to bis borne and was driving bis automobile. Tbe road upon wbicb plaintiff’s intestate was traveling, runs parallel witb tbe right of way of defendant railroad company for some distance until it gets about 150 feet from tbe crossing. Plaintiff’s intestate was traveling west, and tbe train of defendant was traveling east. Hence a traveler on tbis bigbway, approaching tbe crossing, would be facing tbe train until be got about 150 feet from tbe crossing. At a point in tbe road forty or fifty feet from tbe crossing tbe traveler, by merely looking up, could bave seen tbe train 125 yards off. At a point in tbe road 60 feet from tbe crossing “there is no obstacle or obstruction to anybody’s sight for 275 yards up tbe track.” There was a North Carolina stop-law sign at tbe crossing. There was also a “Stop, Look and Listen” sign. On tbe date specified, plaintiff’s intestate approached tbe crossing traveling at a rate of speed estimated between 15 and 20 miles an hour. He was familiar witb tbe crossing by reason of tbe fact tbat be bad crossed tbe track of tbe defendant at tbat point four times a day for ten or twelve years. Tbe evidence further tended to show tbat tbe deceased was also familiar witb tbe schedule of trains. Tbe evidence further showed tbat tbe train gave tbe proper signals for tbe crossing.

Tbe bigbway crosses tbe railroad track diagonally. An eye witness, describing tbe collision, said: “Tbe automobile ran up on tbe crossing and tbe train scooped it up on tbe cow-catcher, bitting tbe car from tbe right front, wbicb made tbe right front of tbe car slide up on tbe cow-catcher and lift tbe rear wheels of tbe automobile on tbe track, or something like tbat. Tbe train pushed tbe automobile down tbe track a distance of 154 feet, where tbe automobile struck a bridge which knocked tbe automobile off tbe track and loose from tbe engine. Tbe side of tbe automobile was crushed.” Plaintiff’s intestate died a short time after being removed from tbe scene of tbe collision. Tbe crossing is 191 feet from tbe corporate limits of tbe town of Nashville. Tbe road from *86Nashville to Spring Hope, upon which plaintiff’s intestate was traveling, was a “much traveled road as a county road, but not as a. highway.” The train of defendant was composed of an engine, baggage car and one passenger coach.

At the conclusion of plaintiff’s evidence there was judgment of non-suit, and the plaintiff appealed.

Cooley & Bone, H. S. Ward and, Stephen C. Bragaw for plaintiff.

Spruill & Spruill for defendant.

BbogdeN, J.

Three questions are presented for decision:

1. Is the failure of a railroad company to maintain a watchman, gates, gongs or other devices at a public crossing in the country evidence of negligence in an action brought by a person injured by collision with a train at such crossing?

2. Was there evidence to be submitted to -the jury on the question as to whether the engineer of the train could have stopped before hitting the bridge?

3. Was the statement of the engineer of the train after the collision admissible in evidence?

Upon the first question the plaintiff relies upon Dudley v. R. R., 180 N. C., 34, 103 S. E., 905. The principle of law announced was as follows: “It was not error for the court to permit the plaintiffs to offer evidence that there was no automatic alarm, or gates, at the crossing, and the court properly left it to the jury to say, upon all the attendant circumstances, whether the railroad company was negligent in not erecting gates. It was incumbent upon the defendant to take such reasonable precautions as were necessary for the safety of travelers at public crossings. 22 R. C. L., 988. This was a question of fact for the jury. That the city authorities assented that a watchman should be stationed at the crossing was not conclusive upon the plaintiffs if, in the opinion of the jury upon the evidence, this was not sufficient protection to the public.” This language interpreted without reference to the facts upon which the decision was based, perhaps supports the contention of plaintiff that it is the duty of railroad companies to install gates or gongs at all public crossings in the State, and that a failure to comply with this duty would be evidence of negligence in personal injury actions resulting from collisions with trains. However, it appears that the crossing involved was upon a much used street in the town of Washington, and that the vision of the traveler was obstructed by a warehouse. The Dudley case was relied upon as an authority in the case of Blum v. R. R., 187 N. C., 640, 122 S. E., 562. In that case Adams, J., concurred in the result, and Stacy, J., while concurring in the-result, calls atten*87tion .to tbe fact tbat tbe question of tbe erection of gongs or gates at public crossings was not before tbe Court. Botb tbe Blum and Dudley cases are cited in Finch v. R. R., 195 N. C., 190, but not upon tbe point involved bere. Tbe leading authority cited in tbe Blum case for tbe position taken was R. R. v. Ives, 144 U. S., 408, 38 L. Ed., 485. In tbat case tbe Supreme Court of tbe United States tbus declared tbe law: “It seems, however, tbat before a jury will be warranted in saying, in tbe absence of any statutory direction to tbat effect, that a railroad company should keep a flagman or gates at a crossing, it must be first shown tbat such crossing is more than ordinarily hazardous; as for instance, tbat it is in a thickly populated portion of a town or city; or, tbat tbe view of tbe track is obstructed either by tbe company itself or by other objects proper in themselves; or, tbat tbe crossing is a much traveled one and tbe noise of approaching trains is rendered indistinct and tbe ordinary signals difficult to be beard by reason of bustle and confusion incident to railway or other business; or, by reason of some such like cause; and tbat a jury would not be warranted in saying tbat a railroad company should maintain those extra precautions at ordinary crossings in tbe country. Tbe Ives case is cited with approval in Northern Pacific R. R. Co. v. Moe, 13 Fed., 2nd series, 377, in which it is declared: “While tbe necessity for a flagman or other warning at a crossing has usually been found by tbe adjudged cases to exist at railway crossings over busy highways in cities, . . . tbe test is tbe peculiar danger of tbe crossing, even if it be in a village. See New York, S. & W. R. Co. v. Moore, 105 F. 725, 45 C. C. A., 21.” Tbe subject is discussed in an extensive note in 16 A. L. R., p. 1273, where all tbe authorities are assembled and analyzed.

Applying these principles of law to tbe facts disclosed by tbe record, there is no evidence of obstruction existing at this crossing; neither is there evidence tbat tbe vision of a traveler was obscured by curves, embankments, buildings or other conditions, which rendered tbe crossing more than ordinarily hazardous, nor does tbe record disclose any condition of peculiar danger. Therefore, we bold tbat tbe failure of tbe defendant to maintain gates or gongs at this crossing was no evidence of negligence.

Tbe plaintiff contends, however, tbat if the defendant was not guilty of negligence prior to tbe collision tbat tbe engineer should have stopped tbe train before tbe automobile was pushed against tbe bridge, resulting in tbe death of intestate. Tbe evidence- was tbat tbe bridge was 154 feet from tbe crossing. Tbe question immediately arises: Could tbe engineer in tbe exercise of proper care have stopped bis train within 154 feet ? Tbe only evidence upon this question was tbe testimony of a witness who bad formerly worked for tbe railroad as fireman, flagman, bag-*88gagemaster and conductor. He stated tbat in bis opinion “a tram running at a speed of 20 or 25 miles an bour and carrying an automobile in front of it could be stopped in around 50 yards. Air-brakes are tbe means and appliances wbicb are put in operation to stop tbe train. I know about air-brakes only by hearsay, and I do not know bow long it would take to apply tbem, as I never was an engineer.” Tbe burden was upon tbe plaintiff to sbow negligence. Tbe train ran 51 yards and 1 foot before bitting tbe bridge. According to tbe testimony of plaintiff’s witness, it could bave been stopped in “around 50 yards” after tbe brakes were applied. Tbis testimony, in tbe absence of knowledge as to wbat length of time would be required to apply tbe brakes, amounts to no more than conjecture, and conjecture is not evidence.

Tbe plaintiff again insists tbat certain statements made by tbe engineer after tbe automobile bad been thrown from tbe train at tbe bridge, constituted evidence tbat no proper lookout was observed. Tbis contention is based upon tbe evidence of witness Smith, who stated tbat be was near tbe depot when tbe collision occurred. Tbe depot was approximately 800 feet from tbe bridge. When tbe witness arrived at tbe bridge tbe deceased was being taken from tbe car. Tbe train “went about 32 or 33 yards by tbe automobile after it went off tbe bridge.” Tbe witness then went to tbe engine and found tbe engineer taking off tbe broken bumper of tbe engine. Tbe engineer bad just finished removing tbe bumper and was taking bis wrenches to go down under tbe engine to do some work on tbe brakes. Tbe testimony of witness is as follows: “When I first walked up be was taking off tbat piece and I said, ‘Capt., it bit a bard lick,’ and be said, ‘Yes, it broke when it bit tbat bridge’— talking about tbe bumper piece. He said tbat happened when it bit tbe small bridge and crushed tbe car. He said be didn’t see tbe man when it bit, but saw him right afterwards, when tbe automobile fell in front of him. He didn’t see him when be bit him, but saw him right after-wards.”

Tbe only aspect upon wbicb tbis evidence would be competent would be upon tbe theory tbat tbe statement of tbe engineer was a part of tbe res gestee. Tbe test as to whether a declaration is a part of tbe res gestee depends upon whether tbe declaration was tbe facts talking through tbe party or tbe party talking about tbe facts. Tbe subject is discussed in tbe following cases: Harper v. Dail, 92 N. C., 394; Bumgardner v. R. R., 132 N. C., 438, 43 S. E., 948; S. v. Bethea, 186 N. C., 22, 118 S. E., 800; Young v. Stenwart, 191 N. C., 297, 131 S. E., 735.

We are of tbe opinion tbat under tbe well defined principles of law recognized in tbis jurisdiction tbat tbe statement of tbe engineer was tbe narrative by him of a past occurrence, and therefore not a part of tbe res gestee.

Affirmed.