In granting the compulsory nonsuit in this case, the learned trial judge said, in substance, that when the deceased was within from thirty to forty feet from the railroad, he could have seen down the track at least a quarter and perhaps half a mile ; he had an opportunity to look and to listen. If he stopped and looked, he would have seen the approaching train; he must have seen it, even if he did not hear it. “ If he did not stop, and passed on, the rule of law would defeat this action.”
These reasons for granting the nonsuit appear to have been warranted by the undisputed evidence in the case, and are equally potent in support of the final judgment. While the case is in some respects a close one, we are not convinced that the learned court erred in refusing to take off the judgment of nonsuit.
Judgment affirmed.