Baker v. High Point, Thomasville & Denton Railroad

Beogbbn, <T.

There was evidence tending to establish the negligence of defendant. However, if the plaintiff approached the crossing in the day time, and within a distance of 67 feet therefrom, had an unobstructed vision of the track for over 200 feet, and undertook to cross without looking and listening, he would not be entitled to recover. But the evidence tends to show that the crossing was obstructed by a curve and embankment to the left thereof as plaintiff approached. The testimony was: “Before you can see to your left you are nearly on the *481 track.” Hence it cannot be said that plaintiff is barred of recovery as a matter of law because be gave more attention to the direction where tbe probability of danger was greatest. His conduct under all the circumstances must be tested by the standard of reasonable prudence. Upon this aspect of the case, the following declaration of the Court in Lee v. R. R., 180 N. C., 413, 105 S. E., 15, is pertinent: “One who voluntarily goes on a railroad track, where the view is unobstructed, and fails to look and listen, cannot recover damages for an injury, which would have been avoided if he had done so. The duty to look and listen may be qualified by obstructions and other circumstances, and when these appear the question of contributory negligence is ordinarily for the jury. He is not required to look continuously when he has been misled by the failure of the company to give notice of the approach of its train, or where his attention is rightly directed elsewhere, and he cannot be expected to look in both directions at the same time.”

There is evidence tending to show that after the plaintiff discovered the engine moving on the second track that he attempted, in disregard of his own safety, “to beat the engine to the crossing.” These matters, however, must be submitted to a jury for its determination upon all the facts and circumstances.

Affirmed.