#### MRS. FLORENCE E. ELLIS, Administratrix of the Estate of VERNON ELLIS, Deceased, v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 30 March, 1955.)

1. Appeal and Error § 23—

Where the exceptions are not grouped, the assignments of error will not be considered, but the appeal itself will be treated as an exception .to the judgment. Rule 19-3 of the Rules of Practice of the Supreme Court, G.S. 1-282.

2. Railroads § 5—

Where plaintiff’s evidence discloses that her intestate was last seen alive about 10 :30 pm. and .that his mutilated body was found about 7 :30 the next morning lying near the erossties of defendant’s track, the evidence may be sufficient to establish that intestate was killed by one of defendant’s trains during the night, but i-t does not establish .that he was killed by a particular train, and therefore evidence as to the manner in which a particular train was operated that night does not prove that its manner of operation was the proximate cause of intestate’s death.

*7483. Same—

If a person enters upon a railroad track at a place other than a crossing or public pathway, he is a trespasser and his act of placing himself on ox-near the track constitutes contributory negligence, barring recovery for his death unless the doctrine of last clear chance is applicable.

Barntiill, O. J., took no part in the consideration or decision of this case.

Appeal by plaintiff from *Martin, Special Judge,*January Term, 1955, of JOHNSTON.

This is an action for the alleged wrongful death of plaintiff’s intestate.

The plaintiff alleges that her intestate was killed about 11:50 p.m. on 29 May, 1952, while walking along and crossing the railroad of defendant in the immediate vicinity of the Mitchner Island crossing between Smith-field and Four Oaks, North Carolina. That defendant’s 11:50 p.m. train on that date was being operated at an excessive rate of speed, without sounding any warning of its approach to said crossing and without being-equipped with proper headlights, and that the engineer of said 11:50 train which killed the said plaintiff’s intestate, failed to stop said train after killing plaintiff’s intestate.

According to the evidence, the intestate left his home about 8 :30 p.m. on 29 May, 1952, for the purpose of going- to Haggard’s store for cigarettes. He was at Haggard’s store around 10 :00 p.m. and left there and went to Big Planters Warehouse where he was last seen alive, about 10 :30 p.m. His body was found about 7 :30 a.m. on 30 May, 1952, lying about three feet from the end of the crossties, on the west side of defendant’s southbound track.

One witness testified that he identified the tracks of the intestate in a path back of Big Planters Warehouse which led to the railroad; that he observed the tracks a distance of about 75 yards before they reached the railroad; that he saw the tracks on the edge of the crossties and that the tracks began to fade out. It was 1,100 yards from where the tracks entered the railroad to where the body was found. The body was found about 300 yards from the nearest public crossing and about 100 yards from where a footpath crossed the tracks. The intestate’s right hand was bruised and little particles of human skull were found lying on the end of the cross-ties, and he had a hole knocked in the top of his head about the size of a fifty-eent piece.

The plaintiff offered another witness who testified that he lives some 700 yards from where plaintiff’s intestate got killed; that he lives about 550 yards from the railroad; that on the night in question he saw defendant’s train going- south at about 70 miles per hour, and that there were no lights on the front of the train. No one saw plaintiff’s intestate on or near the defendant’s railroad tracks immediately prior to his death.

*749At tbe close of plaintiff’s evidence, tbe defendant moved for judgment as of nonsuit. Tbe motion was sustained and judgment entered accordingly. Plaintiff appeals, assigning error.

*E. Reamuel Temple, Jr., and J. R. Barefoot for plaintiff, appellant.*

*Larry F. Wood for defendant, appellee.*

Denny, J.

The appellant’s exceptions are not grouped as required by tbe Eules of Practice in tbe Supreme Court, Eule 19 (3), 221 N.C. at page 553, *et seq.*However, tbe appeal itself will be treated as an exception to tbe judgment, *Casualty Co. v. Green,*200 N.C. 535, 157 S.E. 797, but tbe other purported assignments of error which do not comply with our rules, may not be considered. G.S. 1-282; *S. v. Bittings,*206 N.C. 798, 175 S.E. 299.

If it be conceded that the plaintiff’s intestate was killed by one of tbe defendant’s trains, tbe evidence is not sufficient to establish tbe fact that be was killed by its 11:50 p.m. southbound train on 29 May, 1952, as alleged in tbe complaint. Therefore, any conclusion as to which one of tbe defendant’s trains killed tbe plaintiff’s intestate would have to be based on mere speculation. Consequently, the evidence offered by tbe plaintiff in tbe trial below fails to show that tbe manner in which tbe defendant operated its 11:50 p.m. train on 29 May, 1952, was tbe proximate cause of tbe death of plaintiff’s intestate.

Moreover, if tbe plaintiff’s intestate entered upon or near tbe defendant’s railroad tracks under the circumstances which the evidence tends to show, bis status at such time was that of a trespasser. Tbe accident, according to tbe evidence, occurred at least 300 yards from the nearest crossing. His act in placing himself in a dangerous position, on or near the defendant’s railroad tracks, constituted such negligence on his part as would preclude a recovery of damages from the defendant for bis death, unless the defendant had the last clear chance to avoid the injury. *Lee v. R. R.,*237 N.C. 357, 75 S.E. 2d 143; *Osborne v. R. R.,*233 N.C. 215, 63 S.E. 2d 147; *Long v. R. R.,*222 N.C. 523, 23 S.E. 2d 849; *Justice v. R. R.,*219 N.C. 273, 13 S.E. 2d 553; *Mercer v. Powell,*218 N.C. 642, 12 S.E. 2d 227; *Cummings v. R. R.,*217 N.C. 127, 6 S.E. 2d 837. And the appellant admits in her brief that the doctrine of last clear chance does not apply in this case, and points out that it is not pleaded. *Bailey v. R. R.,*223 N.C. 244, 25 S.E. 2d 833.

The ruling of the court below is

Affirmed.

Barnhill, C. J., took no part in the consideration or decision of this case.