His Honor properly held that the evidence in this case was insufficient to justify a jury in returning a verdict for the plaintiff. It appears that plaintiff’s intestate was not on the road-bed but walking along the path beside the railroad, that is the foot-path at the end of the cross-ties. The son said he could have seen the train if he had looked back. The deceased said he-heard the train coming, and ran to get out of the way and fell, and his arm was caught by the front wheel. It further appeared that if he had remained in the path the train would not have struck him. Young v. Railroad, 116 N. C., 932.
An engineer, seeing a person walking on the road track without any reason to know or believe that such person is disabled in some way from seeing and hearing and understanding the situation, may reasonably assume that such person is sane, and as a prudent man will either remain on the side-path where he is safe or will leave the roadbed proper when the train is approaching. If the deceased fell in the wrong direction from running or otherwise near by the train when it was too late for the engineer to stop, it was his misfortune and not the fault of the engineer. Matthews v. Railroad, 117 N. C., 640.