dissenting:
I respectfully dissent to the majority opinion for the reason that I think the evidence established contributory negligence on the part of plaintiff as a matter of law.
While the burden of proof on the issue of contributory negligence is on the defendants, and directed verdict on the issue may not be entered if it is necessary to rely either in whole or in part on defendants’ evidence, defendants’ evidence which is not in conflict with that of plaintiff and which tends to explain plaintiff’s evidence may be considered. 9 Strong’s N.C. Index 3d, Negligence § 35.
Plaintiff testified that he was very familiar with the crossing in question; that he knew that the second set of tracks constituted the main line; that he stopped before crossing the first sidetracks; and that he then proceeded at a speed of five to ten m.p.h. to cross the first sidetracks, to traverse some 47 feet between them and the main line, and to drive upon the main line without stopping again.
One of the most critical points in the evidence related to the distance between the main line tracks and the bushes on plaintiff’s left between the main line and the first sidetracks. Plaintiff’s testimony on this point was vague but his testimony, together with evidence which was not in conflict with it but which tended to explain it, clearly established that there was sufficient clearance between the bushes and the main tracks for plaintiff to have seen the approaching train had he stopped immediately before reaching the main line and looked to his left.