265 N.C. 537 | N.C. | 1965
The crossing was well marked and the weather was clear. The train had been stopped upon the crossing only 30 seconds prior to the accident. It had stopped there lor the necessary purpose of backing up to set off cars for interchange with another carrier. The engine, with which the truck of the deceased collided, had a white stripe painted along its sides from front to rear. It had lights in its cab and near the ground upon the side struck by the deceased. The lead locomotive had its headlight burning, lights in its cab and lights on its side. The rear of this engine was upon the crossing at the deceased’s left. The fireman, observing that the deceased was not slowing down, blew the engine’s whistle. There is no evidence that the gap between the two engines above the coupling combined with street lights on the opposite side of the train created an illusion of an open crossing.
The evidence does not disclose actionable negligence by the railroad and judgment of nonsuit was properly entered. Rose v. R. R., 210 N.C. 834, 187 S.E. 857; Blackwell v. Hawkins, 207 N.C. 874, 178 S.E. 554; Anno: 84 A.L.R. 2d 813, 824. The reason for the failure of the deceased to see the engine blocking the crossing is left to conjecture.
Affirmed.
