#### CHARLES F. HOLT, by His Next Friend, WILLIAM H. HOLT, v. THE NORFOLK AND WESTERN RAILWAY COMPANY.

(Filed 10 November, 1931.)

Negligence B c: Railroads D lb — Railroad is not liable where negligence of third person is sole proximate canse of accident at crossing.

Where the collision between an automobile and a train at a grade crossing is caused solely by the negligence of the driver of the automobile, an occupant of the automobile injured in the collision may not recover damages against the railroad company.

*639Appeal by plaintiff from Clement, J., at April Term, 1931, of Foesyth.

Affirmed.

This is an action to recover damages for personal injuries caused by a collision between an automobile in wbicb plaintiff was riding, and defendant’s train at a grade crossing.

From judgment dismissing the action as of nonsuit, C. S., 567, plaintiff appealed to the Supreme Court.

Wallace & Wall for plaintiffs.

F. M. Rivirms, Parrish & Deal and Craige & Craige for defendant.

Per Curiam.

All the evidence at the trial of this action tended to show that the sole proximate cause of the collision which resulted in plaintiff’s injuries, was the negligence of the driver of the automobile. Conceding that there was evidence tending to show negligence on the part of defendant’s engineer, as contended by plaintiff, such negligence was not the proximate cause of the collision between the automobile in which plaintiff was riding and defendant’s train. For this reason, there is no error in the judgment dismissing the action as of nonsuit.

Where as in the instant case the evidence offered by the plaintiff shows that his injury was due to the negligence of a third party, and not to that of the defendant, it is proper to nonsuit the action, for in that event the plaintiff has failed to make out a case against the defendant. Herman v. R. R., 197 N. C., 718, 150 S. E., 361. The judgment is

Affirmed.