Bailey v. Black Mountain Railway Co.

146 S.E. 135, 196 N.C. 515, 1929 N.C. LEXIS 34

Opinion

Peb Cubiam.

Tbe plaintiff, who was 73 years of age, and deaf, attempted to cross tbe track of defendant at a public crossing near Mica-ville.

. In describing tbe manner of bis injury, plaintiff said: “I never paid much attention, but I looked up tbe road, and I went to step up on tbe road and didn’t know anything then. . . . When I was within five feet of tbe cross-ties I could see down tbe track . .' . about 200 feet. . . . I wasn’t paying much attention, and I expect I couldn’t bear that noise made by tbe engine pushing those ears around that curve, up grade. I reckon I didn’t look that time when I got within five feet of tbe cross-ties.” There was evidence that tbe train gave no signal as it approached tbe crossing.

Contributory negligence, sucb as will defeat a recovery in a ease like' tbe one at bar, is the negligent act of the plaintiff, which concurring and cooperating with the negligent act' of the defendant, thereby becomes the real, efficient, and proximate cause of the injury, or the cause without which the injury would not have occurred. Moore v. Iron Works, 183 N. C., 438, 111 S. E., 716; Elder v. R. R., 194 N. C., 617, 140 S. E., 298; Pope v. R. R., 195 N. C., 67, 141 S. E., 350.

The facts disclosed by the present record bring the case squarely within the principles announced Jiy this Court in the Elder and Pope cases, supra, and the ruling of the trial judge in sustaining the motion of nonsuit is approved.

Affirmed.