#### LEONA YOUNG, Administratrix of P. R. YOUNG, Deceased, v. SOUTHERN RAILWAY COMPANY and J. E. DIVELBISS.

(Filed 10 January, 1934.)

Railroads I) c — Administrator may not recover for death of intestate lulled when struck hy train which he could have seen for 200 yards.

Where there is evidence that defendant’s passenger train, coasting down grade at a rapid speed, struck and killed plaintiff’s intestate who was crossing defendant’s tracks by a foot path, and that the train gave no signal or warning of its approach, but all the evidence tends to show that at the scene of the accident defendant’s tracks were built on a fill and that the top of the fill extended level with the tracks for a distance of eight to twelve feet on either side, and that within six to eight feet of the track defendant’s approaching train could have been seen for a distance of 200 yards, defendant’s motion as of nonsuit is properly allowed.

Civil ACTION, before Alley, J., April Term, 1933. From BuNCOmbe.

On 5 November, 1931, about 1:30 p.m., on a clear day the deceased, an old man eighty-eight years of age, undertook to cross the defendant’s tracks near Canton. He approached the track on the south side and was walking in a footpath across said track. The roadbed was on a fill eight or twelve feet in height and the path led up to the track. From the west to the point of collision is a steep grade. An eye witness offered by plaintiff said: “He came across from the south side and walked upon the bank. As he got upon the top of the railroad fill he turned and walked with his back to the train down the railroad. The last time I saw him he started across the track — he never did stop— just went right straight across the track — he just kept going with his head kinda down looking this way. He was just walking along and *531looking in tbe same direction all tbe time — be walks pretty g'lib. . He was making tbe last step off tbe track on tbe north side wben tbe pilot beam bit bim in tbe bead. ... I beard tbe train blow back np tbe track. . . . If be bad looked up tbe track after be got up tbe fill, be could bave seen tbe train I feel sure. I bave said tbat all tbe time. I can’t say anything but tbat. . . . Not a thing to keep you from seeing up tbe track. ... I was sitting on a wall in my kitchen yard at tbe time tbe accident happened, . . . 150 yards from tbe place where Mr. Young was bit. . . . From tbe time I saw bim walking up there, walking along, be walked on and never changed bis bead at all, kept walking tbe same way all tbe time. 1 never saw bim turn bis bead or change it.”

Tbe plaintiff offered as a witness a civil engineer, who made a blue print of tbe surroundings. This witness testified: “Tbat trail led up an embankment about eight feet high. When be got up there be bad a space to walk over after be got to tbe top of tbe embankment approximately eight or ten feet to tbe track — that eight or ten feet was level with tbe top of tbe fill. . . . Wben be got within eight or twelve feet of tbe track, exactly like pointed out to me, tbe space was perfectly level, and I could see tbe straight track running east and west. Looking east it is 1,100 feet to tbe first Wellstown crossing — tbat was perfectly straight and down grade. Tbe train was not coming in tbat direction — they told me it was coming in tbe other direction. Standing in tbat space — say two feet from tbe end of tbe cross tie, where they showed me Mr. Young walked up, looking due west, tbe way tbe train was coming, I imagine you could see up tbat track between two or three hundred yards anyway. A man walking just tbe way they showed me Mr. Young was walking as be approached tbe railroad track before be went on tbe track, if be bad looked in tbe direction tbe train was coming, could bave seen tbe train at least 200 yards. I could bave seen tbat train in tbe direction it was coming, I would say 200 yards at any point from tbe top of tbe fill to tbe railroad a distance' of eight or twelve feet there, if be bad looked in tbe direction tbe train was coming. Six or eight feet before be got to tbe end of tbe ties be could bave seen two or three hundred yards, if be bad turned bis bead and looked in tbe direction tbe train was coming. I think tbat outhouse is tbe nearest obstruction looking west from tbe railroad track — it is something like twenty-five' feet from tbe track. . . . This little outhouse sits something like 25 feet south of tbe track, and sits on lower ground than tbe track. . . . There is no bouse, no bushes, no growth of any kind tbat would obstruct tbe view of a man from six to eight feet of tbe track right where Mr. Young went on, looking west for two or three hundred yards ... at any point six to eight feet before Mr. Young *532went on the track looking in the direction the train was coming, that would obstruct his view 200 yards. He had to walk the width of the fill six or eight feet before he could go on the track. He could see two hundred yards then after he walked up and got on this bank that was immediately level with the railroad, . . . and if he had looked in the direction the train was coming I am sure that there was no outhouses, no fence, no trees, or anything that would obstruct his view for two hundred yards.”

The evidence tended to show that when the engineer of the train reached the top of the cut west of the point of the collision, he cut off the steam and the engine was coasting down grade at a speed of some 35 or 40 miles an hour, and hence not making a lot of noise. There was evidence that no signal was given of the approach of this rapidly moving passenger train.

The engineer and fireman testified that as soon as they discovered that plaintiff’s intestate was about to enter upon the track they sounded the whistle, put on the emergency brake, and used every available means to stop the train or slacken its speed. There was no evidence tending to show in what distance this passenger train could have been stopped under the circumstances existing at the time.

The cause was tried in the county court upon issues of negligence, contributory negligence, last clear chance and damages. The jury answered the issue of negligence “Yes”; the issue of contributory negligence “No”; the issue of last clear chance “Yes,” and awarded damages in the sum of $2,325.60. The defendant appealed to the Superior Court upon exceptions duly taken. The trial judge overruled certain exceptions so taken by the defendant and sustained others. One exception sustained was for the failure of the judge of the county court to nonsuit the case. Another was to the submission of an issue of last clear chance to the jury in the county court. It was further ordered that the-judgment of said county court ... is hereby set aside and declared null and void, . . . and that a certified copy of this judgment be transmitted to the said General County Court of Buncombe County to the end that judgment may be entered by the said court, dismissing this action as in case of nonsuit. From the foregoing judgment plaintiff appealed.

Harkins, Van Winkle & Walton for plaintiff.

B. G. Kelly and Jones & Ward for defendant.

BeogdeN, J.

The evidence tells in substance, the following story: A pedestrian, an old man, walking briskly, in a much used footpath in a populous community, approaches a live track of the defendant at about *533one o’clock in tbe daytime. Tbe roadbed was about eight feet bigb, and at tbe top of tbe embankment there was a level space of 8 or 10 feet between tbe edge of tbe embankment and tbe track. When tbe pedestrian reached a point within eight or twelve feet of tbe track, be could see 1,100 feet to tbe eastward and within a distance of six or eight feet from tbe track be could see to tbe westward “two or three hundred yards.” A passenger train is approaching from tbe west, coasting down a steep grade at tbe rate of 30 to 40 miles an hour. Tbe pedestrian, still following tbe footpath, steps upon tbe track and in tbe act of crossing, is crushed by tbe locomotive, which it is assumed, failed to give proper signals.

Tbe accepted principles of law applicable to tbe facts preclude recovery. Davidson v. R. R., 171 N. C., 634, 88 S. E., 759; Holton v. R. R., 188 N. C., 277, 124 S. E., 307; Pope v. R. R., 195 N. C., 67, 141 S. E., 350; Bailey v. R. R., 196 N. C., 515, 146 S. E., 135; Krouse v. R. R., 197 N. C., 541, 149 S. E., 923; Tart v. R. R., 202 N. C., 52, 161 S. E., 720.

Affirmed.