#### FLOYD DIX v. HIGH POINT, THOMASVILLE AND DENTON RAILROAD COMPANY.

(Filed 29 October, 1930.)

Railroads D c — Contributory negligence of person walking on track held to bar bis recovery of damages for injuries from being struck by train.

A motion as of nonsuit upon tbe evidence is properly allowed when the evidence discloses that the plaintiff was walking upon the defendant’s track without taking proper precautions for his own safety, and was struck and injured by the defendant’s slowly backward moving train.

Appeal from Schench, J., at June Term, 1930, of Eociungham.

Affirmed.

This is an action for actionable negligence. Tbe plaintiff is 47 years old. On 3 June, 1929, in tbe day time, between 2 and 3 o’clock p.m., tbe plaintiff was walking on tbe northbound track of defendant .company, between Ennis and West Green streets in tbe city of High Point, •N. 0. Tbe plaintiff testified on cross-examination: “I came down tbe track to sbun tbe mud and water. . . . Tbe line I was walking on was the main line going to tbe heart of Higb Point. ... I was on tbe northbound track. . . . Before I went on tbe track I looked both ways to see that there was no train in sight either way. That was tbe last time I looked back, as far as I know, except when something on tbe bank attracted my attention. That was tbe last time I looked for a train. It was right around a hundred yards from tbe Ennis Street Crossing where I was hurt. I was walking in tbe middle of tbe track. I was going to turn square to my right and go up tbe bank, cross tbe railroad line and up tbe bank. I was between tbe rails when I was struck. I was knocked down between tbe rails. I think I was walking at an ordinary gait. I have a good eyesight. I am very bard of bearing, not as much then as I am now. I could bear good enough to work anywhere.”

Plaintiff’s left arm was injured so that it bad to be amputated. Tbe evidence of plaintiff’s witness was to tbe effect that defendant’s train was backing with three or four box-cars, and be was struck by tbe first car on tbe end. No warning or signal was given of the train’s approach. Tbe train was not running very fast — eight, ten or twelve miles an hour. No one was stationed on tbe end car. Witnesses beard no bell ringing or whistle blow at Ennis Street Crossing. It was in evidence that the track was used as a walkway. Tbe railroad is straight from Ennis Street and plaintiff was struck about 300 feet from Ennis Street. Plaintiff bad walked between tbe rails, and on tbe northbound track as *652it was muddy and water was standing between the north and southbound-tracks above his shoetops. There was a space of about five feet between the ends of the cross-ties, between the two tracks.

Allen D. Ivie, Jr., Wals&r & Qasey and L. B. WilKams for plaintiff.

Lovelace & Kirlcman and Glidenvell, Dumb & Gwyn for defendant.

Per Curiam.

At the close of plaintiff’s evidence the defendant, in the court below, made a motion for judgment as in case of nonsuit. C. S., 567. The court below allowed the motion, and in this we see no error. Neal v. R. R., 126 N. C., 684; Davis v. R. R., 187 N. C., 147; Thompson v. R. B., ante, 409. The judgment of the court below is

Affirmed.