#### PEARLY THOMPSON, Administratrix of QUEEN THOMPSON, v. THE ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 10 September, 1930.)

Railroads D c — Contributory negligence of person waiting on track held to bar recovery in action for wrongful death.

A pedestrian voluntarily using the track of a railroad company as a walkway for bis own convenience is required to look and listen for approaching trains and to use due care for his own safety, and where in an action by an administratrix it appears that the deceased was in full vigor and in possession of his faculties, and that there was nothing in his condition to prevent him from seeing and hearing the defendant’s train and getting off the track, the deceased’s own negligence will bar a recovery by his administratrix.

Appeal by plaintiff from *Sinclair,*Jat June Term, 1930, of Edge-combe.

Affirmed.

Action to recover damages for the wrongful death of plaintiff’s intestate.

Plaintiff’s intestate, about nineteen years of age, while walking on defendant’s track, was struck and killed by one of its trains. There was no eye-witness of the occurrence. There was evidence tending to show that plaintiff’s intestate was struck by defendant’s train about 400 yards south of a public crossing, and that no bell was rung or whistle blown when the train approached and passed over the crossing. From the crossing to the place where the body of the deceased was found, the track was straight and the View of the engineer unobstructed. There was no evidence tending to show that plaintiff’s intestate was down on the track, or that there was anything in his condition or situation which prevented him from getting off the track before the train struck him. He was a strong, able-bodied young man, on his way from his home to the factory at which he was employed. He had gone upon the railroad track voluntarily, instead of walking on the public road, which was parallel to the track. There was no evidence tending to show that he could not have seen and heard the train in ample time to have got off the track before the train struck him.

At the close of the evidence for the plaintiff, on motion of the defendant, the action was dismissed by judgment as of nonsuit. From this judgment plaintiff appealed to the Supreme Court.

*H. D. Hardison and Henry O. Bourne for plaintiff.*

*Gilliam & Bond and Spruill & Spruill for defendant.*

*410Pee Cubiam.

"We find no error in the judgment dismissing this action. The judgment is supported by the decision of this Court in *Davis v. R. R.,*187 N. C., 147, 120 S. E., 827. In the opinion in that case it is said: “The decisions in this State have been very insistent upon the principle that a pedestrian voluntarily using a live railroad track as a walkway for his own convenience, is required at all times to look and listen, and to take note of dangers that naturally threaten and which such action on his part would'have disclosed, and if in breach of this duty and by reason of it, he fails to avoid a train moving along the track, and is run upon and killed or injured, his default will be imputed to him for contributory negligence and recovery is ordinarily barred.” See cases cited.

There was no evidence at the trial of this action tending to show a situation upon which an issue involving the principle of “last clear chance” should have been submitted to the jury. *Redmon v. R. R.,*195 N. C., 764, 143 S. E., 829. Conceding that there was some evidence tending to show negligence on the part of the defendant, all the evidence offered by the plaintiff showed that by his own negligence he contributed to the injuries which caused his death. Plaintiff is therefore barred of recovery in this action. *Neal v. R. R.,*126 N. C., 634, 36 S. E., 117, 49 L. R. A., 684. The judgment is

Affirmed.