Opinion
(Filed 19 November, 1908.)
Contributory Negligence — Evidence Conclusive.
When it appears that plaintiff's intestate was injured by attempting to go between two cars of defendant's train, chained together on a live track in constant use, and that he could easily have walked around the train by going from seventy to ninety feet and have avoided the injury, his act constitutes contributory negligence which bars recovery by his administrator.
ACTION tried before Councill, J., and a jury, at February Term, 1908, of ROWAN. Defendant appealed.
R. Lee Wright and P. S. Carlton for plaintiff.
Linn Linn for defendant.
When this case was before this Court at the last term the judgment of nonsuit was set aside, and a new trial was ordered.
On this second trial the evidence relating to the conduct of the intestate as bearing upon the issue of contributory negligence is much clearer and stronger.
It now appears not only from the evidence offered by the defendant, but also plainly from the evidence of the plaintiff, that the deceased by walking from seventy to ninety feet could easily have walked around the train of cars and that he had a perfectly safe way to reach his home instead of climbing between the two cars chained together on the live track in constant use. Upon all the evidence as presented on the second trial we are of opinion that the deceased was guilty of contributory negligence, and that the motion to nonsuit should have been granted.
Reversed.
Cited: Baker v. R. R., 150 N.C. 566; Edge v. R. R., 153 N.C. 214, 221; LeGwin v. R. R., 170 N.C. 361.
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