After applying North Carolina law to the facts of this case, it is clear that Plaintiff's actions or inactions contributed to her injuries. Here, Plaintiff "knew that [she] was approaching a railroad, and knew [she] was entering a zone of danger," Irby v. Southern Ry. Co., 246 N.C. 384, 390, 98 S.E.2d 349, 354 (1957), as detailed below. 1. Plaintiff's approach to the crossing
Although "[their] failure to do so does not relieve the [motorist] of the duty to exercise due care for his own safety," operators are "under duty to give [motorists] timely warning of the approach of [their] train to a public crossing." Irby v. Southern Ry., 246 N.C. 384, 98 S.E.2d 349, 354 (1957). And under North Carolina common law, railroad companies must maintain automatic warning devices at crossings if the crossings are "so dangerous that prudent persons cannot use them with safety unless extraordinary protective means are used."
He was required before entering upon the track to look and listen and to ascertain whether a train was approaching." Irby v. Southern R. Co., 246 N.C. 384, 98 S.E.2d 349, 70 A.L.R.2d 1. The looking and listening must be timely so that his precaution will be effective.
And see Ammons v. Britt, 256 N.C. 248, 123 S.E.2d 579 (1961); Cassetta v. Compton, 256 N.C. 71, 123 S.E.2d 222 (1961). Irby v. Southern Ry. Co., 246 N.C. 384, 98 S.E.2d 349, 70 A.L.R.2d 1 (1957); Boone v. North Carolina R. Co., 240 N.C. 152, 81 S.E.2d 380 (1954); Lee v. Atlantic Coast Line R. Co., 237 N.C. 357, 75 S.E.2d 143 (1953); Osborne v. Norfolk W. Ry. Co., 233 N.C. 215, 63 S.E.2d 147 (1951); Ingram v. Smoky Mountain Stages, 225 N.C. 444, 35 S.E.2d 337 (1945); Battle v. Southern Ry. Co., 223 N.C. 395, 26 S.E.2d 859 (1943); Long v. Norfolk Western Ry. Co., 222 N.C. 523, 23 S.E.2d 849 (1943); Russ v. Atlantic Coast Line R. Co., 220 N.C. 715, 18 S.E.2d 130 (1942); Justice v. Southern Ry. Co., 219 N.C. 273, 13 S.E.2d 553 (1941). Gunter v. Winders, 256 N.C. 263, 123 S.E.2d 475 (1962); Grant v. Royal, 250 N.C. 366, 108 S.E.2d 627 (1959); Barnes v. Horney, 247 N.C. 495, 101 S.E.2d 315 (1958); Osborne v. Norfolk Western Ry. Co., 233 N.C. 215, 63 S.E.2d 147 (1951); Aydlett v. Keim, 232 N.C. 367, 61 S.E.2d 109 (1950); Long v. Norfolk Western Ry. Co., 222 N.C. 523, 23 S.E.2d 849 (1943).
"The doctrine of last clear chance does not arise until it appears that the injured person has been guilty of contributory negligence." Irby v. Southern R. Co., 246 N.C. 384, 98 S.E.2d 349 (1957), 70 A.L.R.2d 1. To support the doctrine of last clear chance the plaintiff has the burden to show that he placed himself in a dangerous situation by his own negligence; that the defendant saw or by the exercise of reasonable care should have discovered, the perilous position of the plaintiff in time to avoid injuring him; and that notwithstanding such notice and imminent peril, he negligently failed to use every reasonable means at his command to avoid the impending injury; and that the injury occurred as the proximate result of the failure to exercise such care. Irby v. Southern R. Co., supra.
There is no contention that the emergency brakes were not in proper operating condition, or, operating at the speed it was, could have been stopped in a shorter distance. See, Irby v. Southern Railway Company (1957) 246 N.C. 384, 98 S.E.2d 349, 354, 70 A.L.R.2d 1, 8-9: "Indeed the doctrine of last clear chance does not apply in cases where the person upon the track of a railroad, at the time, is in apparent possession of his strength and faculties, the engineer of the train that produces the injury having no information to the contrary.
"A railroad company is under duty to give travelers timely warning of the approach of its train to a public crossing, but its failure to do so does not relieve a traveler of his duty to exercise due care for his own safety, and the failure of a traveler to exercise such care bars recovery when such failure is a proximate cause of the injury." In Irby v. R. R., 246 N.C. 384, 98 S.E.2d 349, it is said: "In the instant case plaintiff knew that he was approaching a railroad, and he knew he was entering a zone of danger.
Even though the railroad has posted signs which are adequate to give a traveler upon the highway notice of the presence of a railroad crossing, it is also the duty of the railroad to give timely warning of the approach of its train to the crossing by the blowing of the whistle or horn, by ringing the bell or by some other device reasonably calculated to attract the attention of those approaching the crossing upon the highway. Johnson v. R. R., 255 N.C. 386, 121 S.E.2d 580; Irby v. R. R., 246 N.C. 384, 98 S.E.2d 349; Caldwell v. R. R., 218 N.C. 63, 10 S.E.2d 680; Moseley v. R. R., 197 N.C. 628, 150 S.E. 184; Hill v. R. R., 195 N.C. 605, 143 S.E. 129; Blum v. R. R., 187 N.C. 640, 122 S.E. 562; Johnson v. R. R., 163 N.C. 431, 79 S.E. 690; Hinkle v. R. R., 109 N.C. 472, 13 S.E. 884. In the Hinkle case, Avery, J., speaking for the Court, said:
The plaintiff's right to recover, notwithstanding his own negligence, must arise out of a factual situation which gave the defendant an opportunity, through the exercise of reasonable care, to have avoided the injury to him but failed to do so. Aydlett v. Keim, 232 N.C. 367, 61 S.E.2d 109; Manufacturing Co. v. R. R., 233 N.C. 661, 65 S.E.2d 379; Wade v. Sausage Co., 239 N.C. 524, 80 S.E.2d 150; Irby v. R.R., 246 N.C. 384, 98 S.E.2d 349; Gunter v. Winders, 256 N.C. 263, 123 S.E.2d 475; McMillan v. Horne, 259 N.C. 159, 130 S.E.2d 52. In McMillan v. Horne, supra, Higgins, J., speaking for the Court, said: "Ordinarily the last clear chance involves the conduct of a defendant after his negligence and the plaintiff's contributory negligence have had their play, still leaving the defendant time and opportunity to avoid the injury notwithstanding what both parties have previously done, or failed to do.
Godwin v. R.R., 220 N.C. 281, 17 S.E.2d 137. See also, Carter v. R.R., supra; Arvin v. McClintock, 253 N.C. 679, 118 S.E.2d 129; Irby v. R.R., 246 N.C. 384, 98 S.E.2d 349. For the reasons assigned, the judgment entered in the court below is