While I concur in granting a new trial, I am of opinion tbe motion to nonsuit should be granted.
It is well settled that where tbe facts necessary to constitute contributory negligence are established by tbe evidence of plaintiff, motion for judgment of nonsuit should be sustained. Keller v. Fiber Co., 157 N. C., 575. I think tbe motion should have been allowed in this ease.
Plaintiff testified that be could not see down tbe track on account of box cars; that be was looking right at tbe cars, and bad to go around tbe edge of tbe box cars, as they projected out two feet onto tbe road crossing. He admits that be knew that many trains passed over tbe crossing on that track. He admits that be did not stop bis automobile, but only slowed down and listened. He distinctly says that be did not get out and go to tbe edge of the box cars and look, and further states: “I did not stop to see if anything was* coming from behind tbe box cars.” This evidence shows such a high degree of carelessness that I do not think, as a matter of law, plaintiff can recover. I am aware of tbe fact that it is said, in Shepherd v. R. R., 166 N. C., 545, that it is not always imperative on a traveler to come to a complete stop before entering on a railroad crossing; but wbetber be must stop, in addition to looking and listening, depends upon tbe facts and circumstances of each particular case, and so is usually a question for tbe jury. Tbe case at bar differs very materially from tbe Shepard case. There is nothing here to go to tbe jury. Tbe plaintiff’s own evidence shows that bis conduct was such as cannot be justified in law under tbe rule of tbe *282prudent man. He admits that his view was obstructed and that he could not see whether a. train was coming ,or not. He did not take the trouble to stop his car and walk to the edge of the box cars and look. His car was running, his engine going, and we know from common experience that under such circumstances he could not hear anything' like as well as if his engine had been stoppied. Under such conditions, testified to by himself, I think the law made it the imperative duty of the plaintiff to stop his car before going on the track. It must be admitted that if he had done so he would not have been injured.
As far back as 1873, Judge Sherswood, an eminent judge of the Supreme Court of Pennsylvania, said: “There never was a more important principle settled than that the failure to stop immediately before-crossing a railroad track is not merely evidence of negligence for the jury, but negligence per se and a question for the court. It was important not so much to railroad companies as to the traveling public. Collisions of this character have often resulted in the loss of hundreds of valuable lives of passengers on trains, and they will do so again if travelers crossing railroads are not taught their simple duty not to themselves only, but to others.” R. R. v. Beale, 73 Pa., 503.
“The failure of a person about to cross a railway track, on a highway a.t grade, to look and listen for an approaching train and to stop-for such purpose, where the view of the track is obstructed, or where there is noise which he .may control, is negligence per se, which will bar a recovery for an injury resulting from a collision with a train at such crossing.” Blackburn v. R. R., 34 Oregon, 215, citing numerous cases in support of this position at page 222.
In Chase v. Maine Central R. R. Co., 167 Mass., 383, it is said to be a general rule “that, if there is anything to obstruct the view of a traveler on a highway at a crossing at grade, it is his duty to stop until he can ascertain whether he can cross in safety.” The same principle is laid down in Sholts v. R. R. 121 Fed., 678; R. R. v. Holden, 93 Mo., 417; Ely v. R. R., 158 Pa., 233. The Supreme Court of Maryland said, in R. R. v. Hogeland, 66 Md., 149: “It is negligence per se for any person to attempt to cross tracks of a railroad without first looking and listening for approaching trains; and, if the track in both directions is not fully in view in the immediate approach to the point of intersection of the roads, due care would require that the party wishing to cross the railroad track should stop, look, and listen before attempting to cross. Especially is this required where a party is approaching such crossing-in a vehicle, the noise from which may prevent the approach of a train being heard. And, if a party neglects these necessary precautions, and receives injury by collision with a passing train, which might have been seen if he had looked, or heard if he had listened, he will be presumed to *283have contributed by his own negligence to the occurrence of the accident. This is the established rule, and it is one that the courts ought not to relax, as its enforcement is necessary as well for the safety of those who travel in railroad trains as those who travel on the common highways.”
In Davis v. R. R., 159 Fed., 10, it is held: “One who drives on a trot toward a railroad crossing when the view along the track is obstructed, until within 20 or 25 feet of the track, and then continues to walk his horses toward the crossing without taking the precaution to stop and listen for a train, is guilty of negligence which will preclude his holding the railroad company responsible for collision with a train.”
In Shufelt v. R. R., 96 Mich., 327, the Court said: “lie who does not choose to stop and listen, where he cannot see, must suffer the consequences of his own negligence.”
In a later Massachusetts case, Chase v. R. R., 208 Mass., 137, decided since automobiles came in vogue, it appeared that a chauffeur operating a seven-passenger automobile was driving along a country road about noon on a bright day, and as he approached a grade crossing with which he was familiar, and knew that trains might come from either direction at any moment, at a speed from 12 to 15 miles per hour until he was very close to the track, when he reduced his speed to eight miles an hour, and while crossing the track the. automobile was struck by a train running 25 miles an hour. The Court held that the driver of the automobile was guilty of contributory negligence as a matter of law, and in the opinion of the Court it is said: “The rules of law applicable to the driver of a horse-drawn vehicle approaching a railroad crossing have been laid down in many cases. 1 He must look and listen in a reasonable way, so as, if possible, to secure his safety. The proper application of this rule for one driving an automobile is simple, and in concrete cases far less difficult than for the driver of horses. As was said in Hubbard v. Boston & A. R. Co., 162 Mass., 132, There are very few horses that can safely be stopped within 15 or 20 feet of a railroad track to await the passage of an express train. One driving there before the accident was obliged to choose between the risk of driving across and being struck by an express train whose approach he might fail to hear, and the risk of stopping to look so near the track as to expose him to great danger from the fright of his horse if an approaching train would be near.’ The driver of an automobile is in no such danger. If his machine is a good one, it can be controlled easily and perfectly, and there is no danger from it if he stops to look and listen, within six feet of the track.”
In the Chase case the driver of the automobile, Hancock, did not stop, and it was indisputable that had he stopped the injury would not have occurred. In concluding its opinion the Court says: “With proper *284care on the part of the driver, there is no danger in crossing a railroad with an automobile upon an ordinary highway in a country town. In this case, considering that part of the testimony most favorable to the plaintiffs, there is no evidence that Hancock was in the exercise of due care; but, on the contrary, the accident seems to have been caused by his great carelessness.”
In R. R. v. Maidment, 168 Fed., 21, and in Brommer v. R. R., 179 Fed., 577, the Federal Courts hold that it is the imperative duty of the drivers of motor-driven vehicles to stop as well as to look and listen before crossing railroad tracks.
I could cite many other cases from many other Courts holding similar views. They all base them upon the idea that an automobile in good condition can easily be stopped and started, and that no hardship is imposed by requiring them to stop before crossing a railroad track. It is perfectly obvious that by stopping collisions are certainly avoided, injuries prevented, and human lives saved. The use of automobiles has grown immensely in the last decade. Their use invblves many dangers not only to the users but.to the public as well. The public interest demands that the courts should be rigid and inflexible in requiring those who operate such vehicles to exercise a high degree of care in order to prevent injuries. The statistics show, as I have seen it stated in the public prints, that 126,000 persons were killed by automobiles within the. past year, of which 21,000 were children. Such mortality is appalling, and surpasses by far the number of deaths caused by railroads.
I am very strongly of opinion that this Court should align itself with the Courts of other States, some of which I have quoted, and hold that under all circumstances an automobile shall come to a full stop before crossing a railroad track. This is the universal rule established by railroads for the purpose of preventing collisions where one railroad crosses the track of another. An automobile can come to a full stop very much easier and in far less time than a railroad train, and it is no hardship to require it to do so, and it would insure the safety of its occupants as well as those who travel on a train.
In conclusion, I.will say that this case is one of many others where the jurors seem ready and willing to take the word of the party injured, who is pecuniarily interested in the result, as against the engineer’s and firemen, who have no such interest. In this case the engineer and fireman, men against whose character not a word is uttered, both swear positively that the whistle blew for the crossing, and that they kept a vigilant look. The plaintiff, who expects to recover a large sum of money, does not swear that the whistle did not blow, but only that he did not hear it. Of course he did not with his motor throbbing and his *285car crossing tbe tracks. Tbe engineer could not see bim because tbe plaintiff was behind tbe box cars and out of tbe engineer’s vision.
There is no way to do justice to all parties and to save life and personal injury except to require those who cross railway tracks in motor ears to stop and look and listen.