#### R. B. McROY & COMPANY, INC., v. ATLANTIC COAST LINE RAILROAD COMPANY, INC.

(Filed 12 December, 1951.)

Railroads § 4—

Plaintiff's evidence held to show, as a matter of law, contributory negligence constituting a proximate cause of tbe crossing accident in suit.

Appeal by plaintiff from Burney, J., February Term, 1951, of Columbus.

Civil action to recover for property damage caused by a truck-train collision at a grade crossing.

At tbe close of tbe plaintiff’s evidence, tbe defendant moved for judgment of nonsuit. Tbe motion was allowed, and from judgment based on sucb ruling tbe plaintiff appealed, assigning errors.

Irvin B. Tuclcer, Jr., for plaintiff, appellant.

Boisson, Campbell Marshall and E. K. Proctor for defendant, appellee.

Per Curiam.

Tbis case involves no new question or feature requiring extended discussion. Tbe evidence offered by tbe plaintiff, when tested by settled principles of law, fails to make out a case for tbe jury. Tbe collision occurred in broad daylight at tbe grade crossing on Lee Street in tbe business district of tbe town of Whiteville. Tbe record discloses that tbe truck driver “was thoroughly familiar with tbe crossing.” He said be bad “crossed it many times.” Also, just prior to tbe collision tbe driver bad made a stop up tbe tracks about 100 yards from tbe crossing. Thereafter be drove westerly along a street parallel with and on tbe south side of tbe tracks intending to make a right turn at Lee Street and then cross tbe tracks. "While so driving side of tbe tracks, be knew tbe train was in town just beyond tbe crossing. He said, “I beard it. I knew it was stopped there just west of tbe . . . station ... I could have seen it if I bad looked for it. When I stopped ... I bad a view down tbe track of almost 120 feet,” beyond tbe box car which plaintiff urges was an obstruction. Tbe train was traveling only about 6 miles per hour. Tbe only reasonable inference deducible from tbis evidence is that tbe plaintiff’s driver was contributorily negligent.

Tbe plaintiff was not prejudiced by tbe exclusion of that part of tbe town ordinance making it unlawful “for any train to do any shifting across said streets (Lee Street included) without having first placed a watchman on crossings to direct traffic.” Besides, tbe record discloses no-evidence that tbe train was engaged in a shifting operation.

It follows that tbe judgment of nonsuit was properly entered below.

Affirmed.