#### MELVIN B. PARKER v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 11 October, 1950.)

Railroads § 4—

Where the evidence discloses that plaintiff was entirely familiar with the railroad crossing in question, that he stopped and looked when within eight or ten feet of the nearest rail where his view of the approaching train was obstructed by a bank, and then drove upon the crossing without again looking in that direction, although he could have stopped in safety beyond the bank where his view of the approaching train was unobstructed for a distance of one-half to two miles, *is held*to disclose contributory negligence barring recovery as a matter of law.

*473Appeal by defendant from *Morris, J.,*June Term, 1950, WayNE.

Beversed.

Civil action to recover compensation for personal injuries and property damage resulting from a truck-train collision.

Tbe defendant’s track extends from Dudley to Mount Olive in a north-soutb direction and tbe road or pathway on wbicb plaintiff was traveling extends in an east-west direction. Plaintiff’s land, wbicb lies on botb sides of tbe railroad, slopes to tbe east. Tbe railroad track is built along tbis slope, creating a bank on tbe east beyond tbe ditcb. Tbis “bank” is approximately level with tbe adjoining land to tbe east but is several feet above tbe railroad tracks. Tbe top portion of a train may be seen as it approaches from tbe north.

The road is not a public road. It is in tbe nature of a neighborhood road across plaintiff’s land from one highway to another. Tbe public does not maintain it, and it is not on tbe highway map. “I maintain it. just as small as I can” — “two ruts.”

Plaintiff’s testimony tends to show that along tbe right of way to the north there are plum bushes and other undergrowth and weeds and dog-fennels wbicb tend to obstruct tbe view to tbe north, from wbicb direction tbe train approached, up until a traveler gets beyond tbe “bank” or side of tbe cut. Tbe ridge of tbe bank is about 15 feet from tbe rail.

On tbe morning of 28 May 1948, plaintiff approached tbe crossing on bis truck, going west. When tbe front of bis truck was within 8 or 10' feet of tbe east rail, be stopped, looked to tbe north and then to tbe south. He neither saw nor beard an approaching train. He then put bis car in low gear and proceeded. Tbe front of tbe truck collided with tbe front side of tbe pilot or engine, resulting in injury to plaintiff and damage to. tbe truck.

After looking to tbe north when be stopped, plaintiff did not again look in that direction. At that time be could see 75 or 80 yards up the track to tbe north but be did not actually see tbe train until it was within 25 or 30 feet of him. The train was traveling at about 50 miles per hour.

Tbis is tbe substance of plaintiff’s testimony wbicb constitutes the evidence most favorable to him. His other testimony and tbe photographs present a less favorable picture for him, and defendant’s testimony tends to show that be did not stop before entering upon tbe track and did not heed defendant’s timely signals.

There was a verdict for tbe plaintiff. From judgment on tbe verdict, defendant appealed.

*Dees & Dees for plaintiff appellee.*

*Bland & Bland and W. B. R. Guión for defendant appellant.*

*474Barnhill, J.

Plaintiff was thoroughly familiar with, tbe crossing at which, the accident occurred. The road was a pathway across his farm which extended across the railroad tracks to the west. He used the ■crossing frequently in going to and from town and from one part of his farm to another. On the day of the accident he was on his way to that part of his farm which lies to the west of the railroad. He stopped at a point near the track where he could see to the north for a distance of 75 or 80 yards, yet he did not see the train until it was within 25 or 30 feet of him. When he stopped, he first looked to the north and then to the south and then proceeded toward the track without again looking north. Had he proceeded to a point just beyond the bank as he could have done in safety, he would have had an unobstructed vision to the north for a distance variously estimated from one-half to two miles. In this connection his wife testified: “I go across the crossing where this accident occurred. I passed there that very day ... If I get right down near the -track I can look down and see but I couldn’t see if I were with the embankment back there. I have to be almost on the track to see down it because I have to stop there every time to get across.”

Thus, the plaintiff having looked one time, looked no more. He could have stopped in safety at a point which would have afforded him a clear vision. Though he could have seen the train 80 yards or 240 feet away, he did not see it until it was right on him — 25 or 30 feet away. While he was traversing 8 or 10 feet, the train, traveling at about 50 miles per hour, went a distance of 240 feet — or so he testified.

On these facts decision is controlled by the line of cases represented by *Harrison v. R. R.,*194 N.C. 656, 140 S.E. 598; *Godwin v. R. R.,*220 N.C. 281, 17 S.E. 2d 137; *Miller v. R. R.,*220 N.C. 562, 18 S.E. 2d 232; *Eller v. R. R.,*200 N.C. 527, 157 S.E. 800; and *McCrimmon v. Powell,*221 N.C. 216, 19 S.E. 2d 880. Plaintiff knew he was approaching a zone of danger. He had timely opportunity to see the approaching train and avoid the collision. His failure to do so constitutes contributory negligence as a matter of law.

It does not suffice to say that plaintiff stopped, looked, and listened. His looking and listening must be timely, *McCrimmon v. Powell, supra,*so that his precaution will be effective. *Godwin v. R. R., supra.*It was his duty to “look attentively, up and down the track,” in time to save himself, if opportunity to do so was available to him. *Harrison v. R. R., supra; Godwin v. R. R., supra.*Here the conditions were such that by diligent use of his senses he could have avoided the collision. His failure to do so bars his right to recover. *Godwin v. R. R., supra.*

“The courts give slight heed to the testimony of a witness who is willing to say that he cannot see or hear when there is nothing to keep him from seeing and hearing.” “To say that he did not see or hear it is *475a challenge to universal experience.” *Adams, J.,*in *Tart v. R. R.,*202 N.C. 52, 161 S.E. 720.

Since we conclude that plaintiff was guilty of contributory negligence as a matter of law, we need not discuss or decide just what duties defendant owed plaintiff at this nonpublic crossing. Whether it was held to the same degree of care imposed upon it in respect to persons using a public highway we need not say.

The court erred in denying defendant’s motion to dismiss as in case of nonsuit. Hence the judgment below must be

Eeversed.