after stating tbe case. It is true, as contended by tbe learned counsel for tbe plaintiff, tbat tbe defendant must plead contributory negligence, and tbat tbe plea is not good wben it does no more tban deny tbe negligence of tbe defendant and allege tbat tbe plaintiff was injured 'by bis own negligence. Re1-visal, sec. 483; Cogdell v. R. R., 132 N. C., 855.
The defendant, as appears from tbe answer, has done more tban this, and we think it is entitled to avail itself of tbe defense. It has alleged tbat tbe plaintiff entered upon tbe track of tbe defendant without looking and listening, and tbat be recklessly attempted.to cross tbe track in front of an approaching train.
~We also concur in tbe interesting and able discussion of tbe relative functions of tbe judge and jury, and of tbe importance of preventing encroachment by one on tbe powers of tbe other, but we must recognize tbe principle, firmly established, tbat tbe judge must decide, as matter of law, the preliminary question whether there is any legal evidence to be submitted to tbe jury.
In the determination of this question, caution should be observed and tbe construction of the evidence most favorable to the plaintiff should be adopted.
Considering tbe evidence in this light, we must sustain tbe ruling of tbe judge, as it appears clear to us tbat tbe plaintiff was guilty of contributory negligence on his own evidence.
There was much controversy at one time 'as to the right of tbe defendant to avail itself of tbe plea of contributory negligence on a motion to nonsuit, but it is now the accepted doctrine with us tbat it can do so if it is disclosed by tbe evidence of tbe plaintiff. If tbe plaintiff entered on tbe track without looking and listening, or if be looked and listened and attempted to drive in front of the train, in either case be would be guilty of contributory negligence.
He says tbat wben be was sixteen or seventeen feet from tbe track, Hall, who was in tbe buggy with him, told him be beard another train, and jumped out and told him to whip up or be would be caught; tbat be turned and saw tbe train, two or three rail lengths from him, and tbat be whipped bis mare to force him across.
*330It is true be was not injured on tbe crossing, but be would not have been injured at all if be bad not negligently placed bimself in a position of danger.
Tbe citation of authority is needless, as there is no controversy between tbe plaintiff and tbe defendant as to what tbe law is, but as to its application.