PARKER
v.
ATLANTIC COAST LINE R. CO.
No. 244.
Supreme Court of North Carolina.
October 11, 1950.*371 Dees & Dees, Goldsboro, for plaintiff appellee.
Bland & Bland, Goldsboro, and W. B. R. Guion, New Bern, for defendant appellant.
BARNHILL, Justice.
Plaintiff was thoroughly familiar with the crossing at which the accident occurred. The road was a pathway across his farm which extended across the railroad tracks to the west. He used the crossing frequently in going to and from town and from one part of his farm to another. On the day of the accident he was on his way to that part of his farm which lies to the west of the railroad. He stopped at a point near the track where he could see to the north for a distance of 75 or 80 yards, yet he did not see the train until it was within 25 or 30 feet of him. When he stopped, he first looked to the north and then to the south and then proceeded toward the track without again looking north. Had he proceeded to a point just beyond the bank as he could have done in safety, he would have had an unobstructed vision to the north for a distance variously estimated from onehalf to two miles. In this connection his wife testified: "I go across the crossing where this accident occurred. I passed there that very day. * * * If I get right down near the track I can look down and see but I couldn't see if I were with the embankment back there. I have to be almost on the track to see down it because I have to stop there every time to get across."
Thus, the plaintiff having looked one time, looked no more. He could have stopped in safety at a point which would have afforded him a clear vision. Though he could have seen the train 80 yards or 240 feet away, he did not see it until it was right on him25 or 30 feet away. While he was traversing 8 or 10 feet, the train, traveling at about 50 miles per hour, went a distance of 240 feetor so he testified.
On these facts decision is controlled by the line of cases represented by Harrison v. North Carolina R. R., 194 N.C. 656, 140 S.E. 598; Godwin v. Atlantic Coast Line R. R., 220 N.C. 281, 17 S.E.2d 137; Miller v. North Carolina R. R., 220 N.C. 562, 18 S. E.2d 232; Eller v. North Carolina R. R., 200 N.C. 527, 157 S.E. 800; and McCrimmon v. Powell, 221 N.C. 216, 19 S.E.2d 880. Plaintiff knew he was approaching a zone of danger. He had timely opportunity to see the approaching train and avoid the collision. His failure to do so constitutes contributory negligence as a matter of law.
It does not suffice to say that plaintiff stopped, looked, and listened. His looking and listening must be timely, McCrimmon v. Powell, supra, so that his precaution will be effective. Godwin v. Atlantic Coast Line R. R., supra. It was his duty to "look attentively, up and down the track," in time to save himself, if opportunity to do so was available to him. Harrison v. North Carolina R. R., supra; Godwin v. Atlantic Coast Line R. R., supra. Here the conditions were such that by diligent use of his senses he could have avoided the collision. His failure to do so bars his right to recover. Godwin v. Atlantic Coast Line R. R., supra.
"The courts give slight heed to the testimony of a witness who is willing *372 say that he cannot see or hear when there is nothing to keep him from seeing and hearing". "To say that he did not see or hear it is a challenge to credulity and to universal experience." Adams, J., in Tart v. Southern R. R., 202 N.C. 52, 161 S.E. 720, 721.
Since we conclude that plaintiff was guilty of contributory negligence as a matter of law, we need not discuss or decide just what duties defendant owed plaintiff at this nonpublic crossing. Whether it was held to the same degree of care imposed upon it in respect to persons using a public highway we need not say.
The court erred in denying defendant's motion to dismiss as in case of nonsuit. Hence the judgment below must be
Reversed.