The facts are that the defendant operated railway gates on both sides of Corcoran street crossing in the city of Durham for the protection of its tracks, as well as those of the Norfolk & Western and Seaboard Air Line railways.
On the 22d of December, 1909, the gates being up, plaintiff entered upon the crossing, going south, driving a horse and buggy. When within fifty-nine feet of the south gate the gong in the gate-tower sounded, a signal that a train was approaching and that gates would close. The plaintiff was then on the N. & W. track, and his horse in a trot. He did not stop, but drove on, attempting to get through the south gate before it closed. The gate descended on the horse’s back, causing the animal to plunge through the gate, throwing plaintiff out and seriously injuring him.
The plaintiff offered evidence tending to prove it was defendant’s custom to sound the gong as a warning to those between the gates and to give them an opportunity to pass out before the gates were lowered, and that plaintiff was acquainted with and relied upon this custom. To this evidence defendant excepted.
We think it was competent to prove the custom of defendant in sounding the gong and that plaintiff knew of the custom and relied on it. Parrott v. R. R., 140 N. C., 549; 1 Wigmore, sec. 92, sec. 376. But a discussion of this exception is unnecessary as it is proven by defendant’s witnesses that there was a gong *3on tbe tower used for tbe purpose of giving notice of tbe lowering of tbe gates, and the gate-keeper testified that he sounded tbe gong on this occasion. This is a very proper precaution, for tbe sounding of the gong not only serves to notify those then on tbe tracks to hasten off, but to those approaching the crossing it is a signal to stop, which they must heed at their peril.
The other exceptions to the evidence, upon examination, we think, are without merit and need not be discussed.
In apt time, defendant moved to nonsuit: (1) Upon ground that there is no evidence of negligence, and (2) that the plaintiff, as a matter of law, was guilty^ of contributory negligence upon his oavu showing.
The evidence of negligence is plenary. It was the gate-keeper’s duty to observe those who were crossing the tracks when he commenced to lower the gates. When he saw plaintiff trotting his horse in his endeavor to get through the gate it was the gatekeeper’s duty to momentarily arrest the descent of the gate and not let it come down on the horse’s back.
It is said the gate was operated by compressed air and could not be stopped.
The defendant’s witness, the gate-keeper, testified that he had never had occasion to stop the gates when he started them down, and further stated, “I expect you can stop them in any position if they are in proper order. Gates were in pretty good condition that day; about as good as they had been.”
The fact is that the gate-keeper made no attempt to stop the gates, although he saw plaintiff, and must have known that his purpose was to escape from the peril he was in by being on the tracks when a train was approaching on one of them.
Upon the question of contributory negligence the evidence shows that when the gong sounded as a signal that a train was approaching and that the gates would be closed, plaintiff was only fifty-nine feet from the south gate on the N. & W. track, and his horse at a trot.
We cannot say as matter of law that he should have stopped and waited on the track until the train passed. It is a very dangerous and unpleasant position to occupy to be in a buggy between closed gates enclosing three railroad tracks when a train *4is passing on one of them. The plaintiff was in a position of danger, and doubtless bis first impulse was to pusb ahead and drive on through the gate.
"We think upon this issue the trial judge gave the defendant all it was entitled to when he submitted plaintiff's conduct under the circumstances to the judgment of the jury under the rule of the prudent man.