#### SAMPSON B. BAILEY v. BLACK MOUNTAIN RAILWAY COMPANY.

(Filed 16 January, 1929.)

1. Railroads — Negligence—Injuries to Persons On or Near Track — Contributory Negligence.

Where in an action to recover damages for a personal injury alleged to have been negligently inflicted on tbe plaintiff by being struck by defendant’s train while be was negligently attempting to cross tbe tracks without looking for tbe approach of trains, the doctrine of contributory negligence is applied in bar of tbe plaintiff’s recovering damages.

2. Negligence — Contributory Negligence — Proximate Cause.

The contributory negligence of tbe plaintiff will bar bis recovering damages arising from tbe negligence of tbe defendant when tbe plaintiff’s negligence concurs and cooperates therewith and becomes tbe real, efficient and proximate cause of tbe injury in suit, or that cause without which the injury would not have occurred.

Civil action, before McMroy, J., at March Term, 1928, of Yaitcey.

At tbe conclusion of tbe evidence for plaintiff tbe motion of nonsuit made by tbe defendant was sustained, and tbe plaintiff appealed.

G. D. Bailey rnd C. B. Hamrick for plaintiff.

J. J. McLaughlin, Charles Hutchins and Pless & Pless for defendant.

Peb Cubiam.

Tbe plaintiff, who was 73 years of age, and deaf, attempted to cross tbe track of defendant at a public crossing near Mica-ville.

. In describing tbe manner of bis injury, plaintiff said: “I never paid much attention, but I looked up tbe road, and I went to step up on tbe road and didn’t know anything then. . . . When I was within five feet of tbe cross-ties I could see down tbe track . .' . about 200 feet. . . . I wasn’t paying much attention, and I expect I couldn’t bear that noise made by tbe engine pushing those ears around that curve, up grade. I reckon I didn’t look that time when I got within five feet of tbe cross-ties.” There was evidence that tbe train gave no signal as it approached tbe crossing.

*516Contributory negligence, sucb as will defeat a recovery in a ease like' tbe one at bar, is the negligent act of the plaintiff, which concurring and cooperating with the negligent act' of the defendant, thereby becomes the real, efficient, and proximate cause of the injury, or the cause without which the injury would not have occurred. Moore v. Iron Works, 183 N. C., 438, 111 S. E., 716; Elder v. R. R., 194 N. C., 617, 140 S. E., 298; Pope v. R. R., 195 N. C., 67, 141 S. E., 350.

The facts disclosed by the present record bring the case squarely within the principles announced Jiy this Court in the Elder and Pope cases, supra, and the ruling of the trial judge in sustaining the motion of nonsuit is approved.

Affirmed.