Clarkson, J.
These are actions for actionable negligence alleging damages. The plaintiff, Phillip Keller, instituted this action in the Superior Court of Madison County, against ’the Southern Eailway Company, on 19 July, 1932, and filed his complaint, alleging two causes of action. In his first cause of action he alleges that he was operating an automobile truck and drove upon the track of the defendant, Southern Eailway Company, in the town of Hot Springs, and was struck and injured, and demands judgment in the sum of $2,650. In his second cause of action he alleges that his truck was demolished by reason of the impact set forth in his first cause of action, and that he sustained damages in the sum of $350.00 to his truck.
[276]*276On tbe same date ~W. T. Davis, administrator of tbe estate of A. J. Heller, deceased, instituted an action in tbe Superior Court of Madison County against tbe Southern Railway Company, and filed bis complaint on said date, alleging that A. J. Keller, an old man 75 years of age, was a passenger in tbe automobile driven by Pbillip Keller, tbe owner of tbe truck, and that plaintiff’s intestate was killed in said collision, and judgment was demanded in tbe sum of $3,000.
In botb actions, all tbe issues were found in favor of tbe plaintiffs, and judgments rendered on tbe verdicts in favor of tbe plaintiffs.
At tbe close of plaintiffs’ evidence and at tbe close of all tbe evidence, tbe defendant made motions for judgment as in case of nonsuit. C. S., 567. Tbe court below overruled these motions and in this we can see no error. It is a well settled rule that upon a motion as of nonsuit tbe evidence, whether offered by tbe plaintiff or elicited from defendant’s witnesses, is to be considered in tbe light most favorable to tbe plaintiff, and be is entitled to every reasonable intendment thereon and every reasonable inference to be drawn therefrom. We set forth tbe complaint in full, without going into a lengthy detail of tbe evidence, as we think tbe evidence on tbe material allegations in tbe complaint sufficient to have been submitted to tbe jury. There is a discrepancy between tbe complaint and evidence as to tbe course of tbe highway and railroad. In the' opinion we will treat tbe highway as running east and west and railroad north and south. Pbillip Keller, tbe plaintiff, lived about 3 miles from Hot Springs, N. C., and on tbe morning of 3 May, 1932, between 7 and 8 o’clock, was on bis way to Greenville, Tenn., driving a 1930 “A” model Ford truck. It bad been a coupe and bad been changed into a light delivery truck, which be ordinarily used for hauling wood. He was at tbe wheel, and next to him was bis father, A. J. Keller, and sitting next to bis father was Terrell Ricker. He was driving west through Hot Springs on a bard-surfaced State highway, “tbe main artery east and west.” Tbe village bad a population (1930 census) of 725.
Tbe defendant’s railroad track, which runs north and south, crosses this highway. Each day 100 to 500 cars and 400 to 500 pedestrians cross tbe defendant’s track on this highway. On each side of tbe track defendant has a signal post with a red warning light, with tbe word “Stop” and a green light with tbe word “Go.” Defendant ran about 25 trains over this track a day. Approaching tbe defendant’s track, going west, tbe highway goes up a slight incline until it reaches tbe defendant’s track, and it is level and then a decline downward. Tbe view of a traveler on tbe highway going west is obstructed by defendant’s depot, trees and shrubbery, in seeing a train going north on defendant’s track, until very near tbe track.
[277]*277Plaintiff testified, in part: “I was going west, going to Tennessee, as I drove towards tbe track; tbe light was green, it said “Go” and I drove upon tbe track slowly, was making 6 or 8 miles an hour. I was on tbe mountain side, tbe right-band side of tbe highway, and just as ive got up there, we were going on tbe track, and tbe train came up at a rapid speed, must have been making about 30 miles an hour; it bit us and knocked us over against tbe signal post. . . . That crossing is right there at tbe main public square of tbe town, and as I was going-up to tbe crossing to cross tbe crossing there you go between buildings, on both sides it is a close space. I was going towards Tennessee; you can’t see a train coming until you are right on tbe track. ... It may be 16 feet from tbe railroad back to tbe depot. . . . Tbe shrubbery keeps you blinded from seeing tbe train until you get to tbe depot, and that garage and you can’t see at all until you enter right on tbe track. . . . Just shrubbery and trees. ... In tbe complaint, I alleged, That tbe green light, as I came to tbe track, with a defective hood, so as to cause tbe sun’s rays to shine against tbe glass of tbe said signal rendered it difficult to tell whether tbe signal was showing red or green.’ ... I know I drove up there and tbe light showed to be green, looked green to me; well, it was a green light. I could tell them apart that morning and tbe light showed green. It was not bard to tell whether it was a green or a red light that morning when I drove up there. ... I know tbe green light was tbe only one I could see that was burning bright at that time. . . . The light shined against both and showed against them both and that was because they were poorly hooded, and that is true, and when I told him tbe sun was shining against those two' lights, making it hard to tell which was the green or red, I told him the truth, and I told hi in that was the condition the day I went on there, on the morning I drove up there the light did show green then. . . . You could always see both lights if the sun was shining, but the green light showed plain that morning. The red light when you see 'stop’ that says stop, and if 'go’ it is on the green light, you drive on, and I saw 'go’ on the green light and drove on. ... I cut the gas off and it rolled up on the track. I got the four wheels on the track and saw the train coming and I then socked the gas on it; when I saw the train I was going about from 4 to 8 miles; it had just been a short distance behind that I cut the gas off, I cut the gas off about 25 or 30 feet back of that, but I was driving-slow coming up there. ... I put the gas to it to get across and, it hit the back end; from the time I saw the train 30 feet from me, until it hit me, I went about half the distance of the car, and my car was 8 to 10 feet. I will say I drove 8 feet, while the train drove 20, but I saw it was all the way I could do. ... I just let up on the [278]*278gas as I started upon the tracks; my engine was running*; I just took my foot off tke gas and eased up on tbe tracks. As you approach that building, and as you approach the front of it, you can’t see any of the track until you get in front of the depot.”
The evidence on the part of plaintiff was to the effect that plaintiff, Phillip Keller, and his witnesses, heard no' whistle blow or bell ring.
In Harris v. R. R., 199 N. C., 798 (799), is the following: “The law in this State does not impose upon the driver of a motor vehicle, on his approach to a public crossing, the duty, under all circumstances, to stop his vehicle before driving on the crossing. Whether under all the circumstances, as the evidence tends to show, and as the jury may find from the evidence, the failure of the driver to stop, as well as to look and listen for an approaching train at a railroad crossing, was negligence on his part, is ordinarily a question involving matters of fact as well as of law, and must be determined by the jury under proper instructions from the court.” N. C.
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Clarkson, J.
These are actions for actionable negligence alleging damages. The plaintiff, Phillip Keller, instituted this action in the Superior Court of Madison County, against ’the Southern Eailway Company, on 19 July, 1932, and filed his complaint, alleging two causes of action. In his first cause of action he alleges that he was operating an automobile truck and drove upon the track of the defendant, Southern Eailway Company, in the town of Hot Springs, and was struck and injured, and demands judgment in the sum of $2,650. In his second cause of action he alleges that his truck was demolished by reason of the impact set forth in his first cause of action, and that he sustained damages in the sum of $350.00 to his truck.
[276]*276On tbe same date ~W. T. Davis, administrator of tbe estate of A. J. Heller, deceased, instituted an action in tbe Superior Court of Madison County against tbe Southern Railway Company, and filed bis complaint on said date, alleging that A. J. Keller, an old man 75 years of age, was a passenger in tbe automobile driven by Pbillip Keller, tbe owner of tbe truck, and that plaintiff’s intestate was killed in said collision, and judgment was demanded in tbe sum of $3,000.
In botb actions, all tbe issues were found in favor of tbe plaintiffs, and judgments rendered on tbe verdicts in favor of tbe plaintiffs.
At tbe close of plaintiffs’ evidence and at tbe close of all tbe evidence, tbe defendant made motions for judgment as in case of nonsuit. C. S., 567. Tbe court below overruled these motions and in this we can see no error. It is a well settled rule that upon a motion as of nonsuit tbe evidence, whether offered by tbe plaintiff or elicited from defendant’s witnesses, is to be considered in tbe light most favorable to tbe plaintiff, and be is entitled to every reasonable intendment thereon and every reasonable inference to be drawn therefrom. We set forth tbe complaint in full, without going into a lengthy detail of tbe evidence, as we think tbe evidence on tbe material allegations in tbe complaint sufficient to have been submitted to tbe jury. There is a discrepancy between tbe complaint and evidence as to tbe course of tbe highway and railroad. In the' opinion we will treat tbe highway as running east and west and railroad north and south. Pbillip Keller, tbe plaintiff, lived about 3 miles from Hot Springs, N. C., and on tbe morning of 3 May, 1932, between 7 and 8 o’clock, was on bis way to Greenville, Tenn., driving a 1930 “A” model Ford truck. It bad been a coupe and bad been changed into a light delivery truck, which be ordinarily used for hauling wood. He was at tbe wheel, and next to him was bis father, A. J. Keller, and sitting next to bis father was Terrell Ricker. He was driving west through Hot Springs on a bard-surfaced State highway, “tbe main artery east and west.” Tbe village bad a population (1930 census) of 725.
Tbe defendant’s railroad track, which runs north and south, crosses this highway. Each day 100 to 500 cars and 400 to 500 pedestrians cross tbe defendant’s track on this highway. On each side of tbe track defendant has a signal post with a red warning light, with tbe word “Stop” and a green light with tbe word “Go.” Defendant ran about 25 trains over this track a day. Approaching tbe defendant’s track, going west, tbe highway goes up a slight incline until it reaches tbe defendant’s track, and it is level and then a decline downward. Tbe view of a traveler on tbe highway going west is obstructed by defendant’s depot, trees and shrubbery, in seeing a train going north on defendant’s track, until very near tbe track.
[277]*277Plaintiff testified, in part: “I was going west, going to Tennessee, as I drove towards tbe track; tbe light was green, it said “Go” and I drove upon tbe track slowly, was making 6 or 8 miles an hour. I was on tbe mountain side, tbe right-band side of tbe highway, and just as ive got up there, we were going on tbe track, and tbe train came up at a rapid speed, must have been making about 30 miles an hour; it bit us and knocked us over against tbe signal post. . . . That crossing is right there at tbe main public square of tbe town, and as I was going-up to tbe crossing to cross tbe crossing there you go between buildings, on both sides it is a close space. I was going towards Tennessee; you can’t see a train coming until you are right on tbe track. ... It may be 16 feet from tbe railroad back to tbe depot. . . . Tbe shrubbery keeps you blinded from seeing tbe train until you get to tbe depot, and that garage and you can’t see at all until you enter right on tbe track. . . . Just shrubbery and trees. ... In tbe complaint, I alleged, That tbe green light, as I came to tbe track, with a defective hood, so as to cause tbe sun’s rays to shine against tbe glass of tbe said signal rendered it difficult to tell whether tbe signal was showing red or green.’ ... I know I drove up there and tbe light showed to be green, looked green to me; well, it was a green light. I could tell them apart that morning and tbe light showed green. It was not bard to tell whether it was a green or a red light that morning when I drove up there. ... I know tbe green light was tbe only one I could see that was burning bright at that time. . . . The light shined against both and showed against them both and that was because they were poorly hooded, and that is true, and when I told him tbe sun was shining against those two' lights, making it hard to tell which was the green or red, I told him the truth, and I told hi in that was the condition the day I went on there, on the morning I drove up there the light did show green then. . . . You could always see both lights if the sun was shining, but the green light showed plain that morning. The red light when you see 'stop’ that says stop, and if 'go’ it is on the green light, you drive on, and I saw 'go’ on the green light and drove on. ... I cut the gas off and it rolled up on the track. I got the four wheels on the track and saw the train coming and I then socked the gas on it; when I saw the train I was going about from 4 to 8 miles; it had just been a short distance behind that I cut the gas off, I cut the gas off about 25 or 30 feet back of that, but I was driving-slow coming up there. ... I put the gas to it to get across and, it hit the back end; from the time I saw the train 30 feet from me, until it hit me, I went about half the distance of the car, and my car was 8 to 10 feet. I will say I drove 8 feet, while the train drove 20, but I saw it was all the way I could do. ... I just let up on the [278]*278gas as I started upon the tracks; my engine was running*; I just took my foot off tke gas and eased up on tbe tracks. As you approach that building, and as you approach the front of it, you can’t see any of the track until you get in front of the depot.”
The evidence on the part of plaintiff was to the effect that plaintiff, Phillip Keller, and his witnesses, heard no' whistle blow or bell ring.
In Harris v. R. R., 199 N. C., 798 (799), is the following: “The law in this State does not impose upon the driver of a motor vehicle, on his approach to a public crossing, the duty, under all circumstances, to stop his vehicle before driving on the crossing. Whether under all the circumstances, as the evidence tends to show, and as the jury may find from the evidence, the failure of the driver to stop, as well as to look and listen for an approaching train at a railroad crossing, was negligence on his part, is ordinarily a question involving matters of fact as well as of law, and must be determined by the jury under proper instructions from the court.” N. C. Code of 1931 (Michie), section 2621(48); Moseley v. R. R., 197 N. C., 628; Butner v. R. R., 199 N. C., 695; Madrin v. R. R., 200 N. C., 784, S. c., 203 N. C., 245; Campbell v. R. R., 201 N. C., 102; Sanders v. R. R., 201 N. C., 672; Baker v. R. R., 202 N. C., 478; Dancy v. R. R., 204 N. C., 303.
Plaintiff testified: “I was going west, going to Tennessee, as I drove towards the track; the light was green, it said to ‘Go’ and I drove upon the track slowly, was making 6 or 8 miles an hour,” etc.. The light being green and saying “Go,” plaintiff had a right to presume that it was an assurance of safety and that the crossing was clear, and to act with reasonable caution, such as an ordinarily prudent man would use under like circumstances, and drive on the crossing. Barber v. R. R., 193 N. C., 691; Finch v. R. R., 195 N. C., 190 (199); Moseley v. R. R., supra, at p. 635.
The defendant contends that in reference to A. J. Keller, who was a passenger in the automobile, it was entitled to an issue of contributory negligence. We cannot so hold. A. J. Keller was in the automobile and the father of the driver, Phillip Keller, who testified: “My father did not own any interest in that car; he had no control over my driving that car, and did not attempt to exercise any control over my driving that ear. I certainly knew how to operate the automobile properly.”
In Campbell v. R. R., 201 N. C., 102 (107), it is said: “Plaintiff was a guest or gratuitous passenger. It is well settled that ‘negligence on the part of the driver will not, ordinarily, be imputed to a guest or occupant of an automobile unless such guest or occupant is the owner of the car or has some kind of control of the driver. Bagwell v. R. R., 167 N. C., 611; White v. Realty Co., 182 N. C., 536; Williams v. R. R., 187 N. C., 348; Albritton v. Hill, 190 N. C., 429. Of course, if the [279]*279negligence of the driver is the sole, only proximate canse of the injury, the injured party could not recover.' Earwood v. R. R., 192 N. C., at p. 30; Dickey v. R. R., 196 N. C., 726.” Smith v. R. R., 200 N. C., 177 (180).
In Nash v. R. R., 202 N. C., 30 (33), we find: “Louise Nash was a gratuitous passenger or guest in the automobile driven by Sarah Adams. She was not the owner of the car and had no control of it; neither is there evidence that the deceased was engaged in a joint enterprise with the driver or other occupant of the car. Consequently, any negligence on the part of the driver would not be imputed to the deceased.”
In regard to defendant’s having a different light at another crossing, Ave do not think this prejudicial. The defendant brought out the same fact on cross-examination of one of plaintiff’s witnesses. See Blum v. R. R., 187 N. C., 648. We think the court beloAv properly refused defendant’s prayers for special instructions. The charge was full, clear and gave the laAV applicable to the facts. In the judgment below Ave find
No error.