#### MRS. SALLIE WATSON v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 7 November. 1940.)

1. Railroads § 9 — Evidence held for jury on issue of negligence of railroad company causing accident at crossing resulting in injury to plaintiff.

Plaintiff’s evidence tended to show that defendant’s railroad tracks crossed at grade one of the main thoroughfares of a city, that the view of the tracks was obstructed by small buildings and vegetation on the right of way, that no gongs or signal devices were maintained thereat, that defendant’s train operated at an excessive speed and without warning signals by bell or whistle, approached the crossing and struck an automobile which was attempting to cross the tracks, that the driver of the car was not guilty of negligence, that the train carried the car some 75 feet down the track and dropped it on plaintiff, who was working in her flower garden, causing her injury. *Held:*The Evidence was sufficient to overrule defendant’s motion to nonsuit, notwithstanding evidence introduced by defendant contradicting plaintiff’s evidence on every material aspect.

2. Trial § 22b—

Upon a demurrer thereto, the evidence must be construed in the light most favorable to plaintiff and he is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. C. S., 567.

Appeal by plaintiff from *Thompson, J.,*at April Term, 1940, of WayNe.

*Royall, Qosney & Smith and J ames Glenn for plaintiff, appellant,*

*D. H. Bland, W. B. R. Guión, Thomas W. Davis, and V. E. Phelps for defendant, appellee.*

Schencic, J.

This is an action to recover damages for personal injuries- to the plaintiff alleged to have been caused by the negligence of *458tbe defendant. After all tbe evidence on botb sides was in, tbe court sustained tbe defendant’s demurrer to tbe evidence and entered judgment as in case of nonsuit. C. S., 561. Tbe plaintiff preserved exception and appealed.

Tbe plaintiff alleges tbat while sbe was working among ber flowers near tbe side of tbe defendant’s railroad track tbe defendant’s freight train struck tbe automobile of Miss Mitcham, which was crossing tbe railroad track at a highway intersection, and carried tbe automobile along tbe railroad track for some seventy-four feet and dropped it on tbe plaintiff, causing ber injuries.

Tbe plaintiff alleges tbat tbe defendant’s negligence, which was a proximate cause of her injury, consisted of (1) its failure to maintain at a dangerous and much-used crossing a watchman, gates, gongs or other signalling device; (2) its operating its train at an excessive rate of speed; and (3) its failure to give adequate signal by whistle or bell of its approach to tbe highway and railroad track intersection.

Tbe court below held tbat there was not sufficient evidence to be submitted to tbe jury upon tbe issues joined upon tbe allegations of tbe complaint and tbe denials thereof in tbe answer. We think this bolding was erroneous.

Tbe evidence of tbe plaintiff tended to show tbat tbe intersection of Ash Street and tbe railroad track of tbe defendant, where a collision between tbe automobile driven by Miss Mitcham and tbe train of tbe defendant occurred, was within tbe corporate limits of tbe city of Golds-boro, tbat tbe street was one of tbe main thoroughfares of tbe city, and was much used; tbat tbe view of tbe railroad track south of tbe intersection in tbe direction from which tbe train was approaching was obstructed by small buildings and vegetation on tbe right of way of tbe railroad company; tbat tbe train approached tbe intersection at a speed of 20 or 25 miles per hour, tbat no timely and adequate signal was given by whistle, bell or otherwise of tbe approach to tbe intersection of tbe train; tbat Miss Mitcham was driving ber automobile on Ash Street in an easterly direction at a reasonable rate of speed and in a careful manner, that tbe brakes, as well as tbe general mechanical structure of ber automobile, were good, and tbat as sbe entered tbe intersection sbe saw tbe train and turned ber automobile slightly to tbe left in an endeavor to escape tbe collision, but ber automobile was struck by tbe oncoming train of tbe defendant and sbe and ber automobile were carried down tbe railroad track by tbe engine of tbe defendant some seventy-four feet and were thrown to tbe side of tbe track upon tbe plaintiff while working in ber flowers.

Tbe evidence of tbe defendant was sharply in conflict with tbat of tbe plaintiff, and tended to show tbat tbe crossing was not such a dangerous *459one and so used as, in tbe exercise of reasonable care, to require the keeping of a watchman or the maintenance of gates, gongs or other signalling devices thereat, that the view to the south of the crossing was unobstructed, and that the whistle and bell on defendant’s train were sounded, and the train was being operated at a reasonable rate of speed and in a careful manner; and that when Miss Mitcham, who was driving negligently and at an excessive rate of speed, saw that her automobile was going to strike the left side of the engine of the defendant’s train which had entered well into the intersection, she turned her automobile to the left and drove it down the side of the railroad track till it fell therefrom upon the plaintiff- — that the automobile was not struck by the defendant’s engine but ran down the railroad track under its own power.

Upon a demurrer thereto we must construe the evidence in the light most favorable to the plaintiff, who is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom, annotations under C. S., 567, in N. C. Code, 1939 (Michie), and when we apply this rule we áre constrained to hold that his Honor erred when he allowed the defendant’s motion for judgment as in case of nonsuit. *White v. R. R.,*216 N. C., 79; *Moseley v. R. R.,*197 N. C., 628, and cases there cited.

The judgment below is

Beversed.