#### W. J. GODWIN v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 23 December, 1931.)

Railroads B b — In this action, for damages suffered in accident at crossing the evidence is held insufficient to he submitted to the jury.

In an action for damages resulting in a collision at a grade crossing the evidence tended to show that two tracks of the defendant crossed the road, that the plaintiff was thoroughly familiar with the crossing, and that before attempting tb cross he stopped 45 or 50 feet therefrom where his vision was obstructed by trees growing off the right of way, and looked and listened without discovering defendant’s approaching train, that he did not again stop although at fifteen feet from the crossing his vision was unobstructed in the direction from which the train was coming for two hundred’yards, that he saw the train when his front wheels were upon the first track and went on across although the. train was coming upon the second track, *Held:*the evidence was insufficient to be submitted to the jury and the railroad company’s motion as of nonsuit was properly ' allowed. The evidence as to rough places in the crossing is immaterial as nothing indicated that such was a cause of the injury in suit.

Civil actioh, before *Moore, Special Judge,*at April Term, 1930, of HaeNbtt.

On tbe morning of 26 April, 1930, tbe plaintiff was going to his farm which was situated west of the defendant railroad. The ear was driven by plaintiff’s son, but under the direction and control of plaintiff. The road upon which plaintiff was traveling crossed the tracks of defendant *2at grado at a point known as Gainey’s crossing. There was a North Carolina stop sign near the crossing. Plaintiff’s narrative of the collision and injury is substantially as follows: “I stopped about forty-five or fifty feet from the first rail. From the point where I stopped I could not see down the railroad track for a bunch of willow trees. ... I stopped behind the willow trees. The willow trees reached up to the right of way. . . . We looked both ways for a train and didn’t see the right of way. *... We*looked both ways for a train and didn’t see one or hear the whistle blow or the bell ring. After thinking that our way was clear, we went on and just as the wheels of our car got on the first track the train tooted once and we drove on trying to get off the track, and the car was struck by the train. The car was within twenty-five or thirty yards of us when it tooted one time. . . .

The first track was right smart lower than the next track, about fifteen or twenty inches lower, and the crossing was narrow. The road bed where the crossing is was just wide enough for one car to go across. I have crossed the railroad at 'this point a great many times before. In crossing the first track there is a sudden rise across the next track. That track is elevated some fifteen or twenty inches. The surface of the crossing was rough. ... I was born within three miles of Dunn and used this crossing on an average of two or three times a day for twenty years. I was perfectly familiar with the crossing. The railroad . . . runs through an open field and runs north and south. The road on which I was traveling runs about east and west.”

The plaintiff also offered evidence tending to show that the view of a traveler approaching the crossing was obstructed. The testimony with respect to such obstructions is substantially as follows: “There is a cut about two hundred yards south of the crossing. There are certain willow trees which are about seventy-five yards south of the crossing. These trees were twelve or fifteen feet high. However, the evidence tended to show that these willow trees were not on the right of way. One of the witnesses for the plaintiff testified that the willow trees were on the land of a man named Jim Woods. There was a persimmon tree about seventy-five yards below the willow trees. This would place the persimmon tree about one hundred and fifty yards south of the crossing. The persimmon tree was not on the right of way. There was an embankment two hundred yards or more south of the crossing. Plaintiff testified: “I would have to get something like ten or fifteen feet of the track before I' could see south beyond the embankment or cut; that is to say, that within ten or fifteen feet of the first track a traveler could see toward the south more than two hundred yards.” The train which *3struck plaintiff’s car was a fast passenger train, traveling northward, and the plaintiff was traveling westward. There was evidence that the train was running at a very rapid rate of speed. There was no evidence of any obstruction whatever on the north side of the crossing. The evidence showed that the train was traveling on the second track.

At the conclusion of plaintiff’s evidence the trial judge sustained the motion of nonsuit and the plaintiffs appealed.

*0. L. Guy and Young & Young for plaintiff.*

*Bose & Lyon and Clifford & Williams for defendant.*

BkogdeN, J.

The evidence offered by plaintiff presents substantially the following situation: A traveler in an automobile approaches a grade crossing in the day time with which he is thoroughly familiar. He stops about forty-five or fifty feet from the first track and looks and listens, and neither hears nor sees the train. His vision is obstructed by willow trees at the point where the stop is made. Thereupon he proceeds toward the first track, apparently without stopping, looking or listening until the wheels of his car were on thé first track. He then hears the whistle of a train and looks up and discovers a rapidly moving passenger train bearing down upon him, twenty-five or thirty yards away. The train is on the second track and the traveler in his own words “drove on trying to get off the track, and the car was struck by the train.”

There was evidence that the crossing was rough and that the rails of the second track were fifteen or twenty inches higher than the rails of the first track, but no evidence is offered tending to show that the car of the traveler became engaged with the rails or that the rough condition of the crossing contributed to the injury. Within ten or fifteen feet of the first track the traveler had an unobstructed vision of two hundred yards to the south of the crossing, and the train was approaching from the south, traveling northward.

The Court is of the opinion that the facts classify this case in that line of decisions represented by *Trull v. R. R.,*151 N. C., 545, 66 S. E., 586; *Coleman v. R. R.,*153 N. C., 322, 69 S. E., 129; *Bailey v. R. R.,*196 N. C., 515, 146 S. E., 209; *Eller v. R. R.,*200 N. C., 527, 157 S. E., 800,

Affirmed.