Action by an administratrix under the statute for damages. The plaintiff alleged that her intestate *230was billed, or injured, by the negligence of the defendant, from which he died. The evidence disclosed these facts:
The plaintiff’s intestate was seen on the streets of Marion about 8 o’clock at night; that he lived near defendant’s road, west of Marion, and west of Bailey’s trestle across a small stream, about a mile and a quarter west of Marion, and 40 or 50 feet high; that defendant’s westbound vestibule train, according to schedule time, was due at Marion about 11 o’clock at night; that it was on time that night and passed over Bailey’s trestle shortly after 11 o.’clock; that it was a cold night in January and the ground was slightly covered with snow; the next morning the intestate was found under the bridge upon a sill of the trestle, with one thigh broken and with some other bruises about his body, and a little greasy spot on the sleeve of his coat that looked like it might have come off an engine. The evidence showed that he had been in the creek, as his clothing was wet and frozen upon him, and there were signs of a drag, showing that he had dragged himself oút of the creek and onto the sill, which was some three or four feet above the water. Some of the witnesses stated that he was under the bridge, while others spoke of his being on the side of the bridge. lie was found early next morning, but Avas not dead when found; that some time after he was found, the defendant’s depot agent at Marion was notified of his condition, but gave the matter no attention until about 10 o’clock in the day, when he went to the trestle and had the intestate removed to his home where he died that evening. Two doctors testified that he probably died from the exposure. The plaintiff also put defendant’s answer in evidence.
The defendant offered no evidence, and moved, at the close, of plaintiff’s evidence, to nonsuit the plaintiff, which motion was allowed, and she appealed.
*231The plaintiff puts her appeal on two grounds : That defendant was negligent in running over the intestate while on the trestle; and for not stopping the train and caring for the intestate who, as plaintiff alleges, died from exposure and want of attention in his helpless condition.
We do not think the plaintiff’s first ground — the negligent running over the intestate — is sustained by the evidence, as there is no evidence offered to show that the intestate was seen, nor as to the condition of the road approaching the trestle so as to show negligence in the conductor’s not seeing him in time to have prevented the injury.
But if the ’ intestate was on the trestle and was stricken by the train, it was negligence in the defendant not, to have seen him. Arrowood v. R. Co., 126 N. C., 629; Powell v. R. Co., 125 N. C., 374. Of course it must- bo shown that the."intestate was on the road when he was injured, or there could be no negligence in defendant’s not seeing him. This is the turning point in the case, because, if the defendant knocked the intestate off the trestle and knew it had done so, and went on without stopping to look after and care for him, especially on such a night as that, that was such negligence as would make the defendant liable for the result. Black on Contributory Negligence (Ed. 1885), page 221; Railroad v. State, 29 Md., 420; 96 Am. Dec., 545. If the intestate was on the trestle, and struck by the train while on the trestle, and the defendant did not see him when struck, this was negligence, because the defendant must have seen him if the engineer had kept a proper lookout. And this negligence would make the defendant liable for the injury resulting from such negligence.
Then, was the intestate on the bridge when defendant’s train massed over it? There is no direct evidence showing that ho was, and it is suggested that he was not. It is also suggested as evidence in support of this claim that he was *232not on the trestle; that if lie had been stricken by the train he would have been injured much more than he was. It is also suggested that when the intestate found he was about to be overtaken by the train, he let himself down through the trestle and was injured by the fall; or, that he jumped from the trestle and was injured in that way. It may be true that the intestate was injured in some one of the ways suggested.
But the defendant in its answer says “that one of defendant’s regular trains, No. 38, was due to pass the trestle upon which plaintiff was injured,” etc. This answer was offered in evidence, and plaintiff contends that this, together with the other evidence in the case, was sufficient to dairy the case to the jury.
And when we consider that, in case of nonsuit, evidence of contributory negligence cab not be considered, and that the evidence must be considered in the most favorabe light for the plaintiff, we are of the Opinion that the case should have gone to the jury.
Error. New trial.