The defendant conceded that it was guilty of negligence, but alleged that the plaintiff, by his own negligent conduct, had contributed to the injury of which he complained. The only exception insisted upon is the refusal of the Court to charge the jury that “if they believed the evidence, the plaintiff could have extricated himself from any danger after he saw the engine.”
“ When the evidence is direct, so as to leave nothing to inference, and the evidence, if believed, is the same thing as the fad sought to be proved, the Judge is at liberty to instruct the jury, that if they believe the witness, they should find for the plaintiff or for the defendant?” Gaither v. Ferebee, 1 Winst., 310.
Applying this principle to the testimony before us, we are of the opinion that the ruling of his Honor was correct, and that the proposition embodied in the instruction prayed for was an inference to be made by the jury from all the circumstances in evidence. We think that “two reasonable and fair-minded men” (Deans v. Railroad, 107 N. C., 686) might have reached different conclusions, or at least have been left in serious doubt as to whether the plaintiff could have extricated himself, as alleged. Affirmed.