#### MRS. ANNIE E. KUYKENDALL, Administratrix of the Estate of RUFUS KUYKENDALL, Deceased, v. SOUTHERN RAILWAY COMPANY and O. E. WILSON.

(Filed 9 October, 1935.)

Railroads B lb—

In this action to recover for the death of plaintiff’s intestate, killed while attempting to cross defendant’s tracks at an unobstructed grade crossing during the daytime, the evidence *is held*to disclose contributory negligence barring recovery as a matter of law on authority of *Rimmer v. R. R., ante,*198.

*841Appeal by plaintiff from *Sink, J.,*at January Term, 1935, of HeN-deesoN.

Affirmed.

Tbis is a civil action, brought by plaintiff administratrix against defendant, for actionable negligence in killing her intestate, Rufus Kuy-kendall. ,Tbe defendant set up the plea of contributory negligence.

The judgment of the court below is as follows:

“This cause coming on to be heard before the undersigned judge presiding, and a jury, and being heard; at the close of plaintiff’s evidence the defendant moved for judgment as of nonsuit. Upon hearing argument of counsel for plaintiff and defendant, the court is of the opinion that the motion should be allowed: It is therefore ordered and adjudged by the court that said action be and the same is hereby nonsuited and dismissed, and it is further adjudged that the plaintiff pay the costs of the action, to be taxed by the clerk. This 19 January, 1935. H. Hoyle Sink, Judge presiding.”

The only exception and assignment of error by plaintiff is to the court below granting a judgment as of nonsuit.

*Fwbank & Weeks and Charles French Toms, Sr., for plaintiff.*

*R. C. Kelly, Iones & Ward, and Martin <& McCoy for defendant.*

Pek CxtbiaM.

At the close of plaintiff’s evidence the defendant made a motion in the court below for judgment as in ease of nonsuit. C. S., 567. The court below sustained the motion, and in this we can see no error.

There was plenary evidence to the effect that it was a public crossing and “the engine was not blowing . . . the bell did not ring.” This was negligence on the part of defendant, and, if this was the proximate cause of the injury, plaintiff could recover, but the defendant set up the plea of contributory negligence. On this aspect: Defendant’s train was traveling from East Elat Rock to Hendersonville, practically in a northern direction. The plaintiff’s intestate was in a one-horse wagon, traveling parallel to defendant’s track on a county highway in the same direction. The crossing over the railroad track where plaintiff’s intestate was killed on the main track, leads over to the mill village — Skyland Hosiery Mills. At this crossing on the west is a spur track and then the main track of defendant railroad. As plaintiff’s intestate approached this spur track he had to drive from the county highway up an incline about ten feet high to the tracks. When he reached the top of the embankment and got near the railroad crossing, the road was level, and by looking he could see the defendant’s train 240 steps. It was about 12 o’clock in the daytime and nothing to obstruct his view. He traveled on the level up to and over the spur track and then onto the main *842track, where be was killed. This would make him guilty of contributory negligence, and would bar recovery. *Rimmer v. R. R., ante,*198.

It may be that on account of the peculiar ascending road *to the*railroad crossing and the difficulty of seeing the train approach, if he had been caught on the spur track a different result would follow. We see no sufficient evidence of last clear chance to be submitted to a jury on account of the horse “prancing around on the railroad track on his hind legs.”

Eor the reasons given, the judgment is

Affirmed.