The defendant does not contend that there is no evidence of negligence, but it insists that on the evidence introduced by the plaintiff his intestate was guilty of contributory negligence, in that she was killed upon a public crossing and' that she entered thereon without looking and listening.
The rule prevails very generally and is firmly established in our law that it is the duty of a traveler, whether on foot or in some vehicle, to look and listen before entering upon-a railroad crossing, and that his failure to do so is negligence which will bar a recovery if it is the proximate cause of an injury or death, but this duty is not always an absolute ■one and may be qualified by attendant circumstances, Sherrill v. R. R., 140 N. C., 252; Talley v. R. R., 163 N. C., 571; Fann v. R. R., 155 N. C., 141; Johnson v. R. R., 163 N. C., 443.
In the last of these cases, after stating the rule that it is the duty of a traveler to look and listen, the Court says: “The duty of a traveler arising under this rule is not always an absolute one, but may be so ■qualified by attendant circumstances as to require the issue as to his ■contributory negligence by not taking proper measures for his safety to be submitted to the jury”; and in 33 Cyc., 1003, “The mere failure, however, to look or listen, or to look and listen before crossing, is not, as a general rule, negligence per se as a matter of law; but whether or not such failure is negligence usually depends upon the circumstances at the particular time and crossing and is a question for the jury to determine, although it may be negligence as a matter of law under some •circumstances”; and again, page-1007, “A traveler’s knowledge or familiarity with the railroad crossing and his knowledge of the schedule of the approach of trains have an important bearing on the question of his contributory negligence. So it may be contributory negligence for him to go on a crossing with which he is familiar without looking or listening for approaching trains, when, under similar circumstances, it would *285not be contributory negligence for a person wbo is a stranger to tbe crossing to do so.”
Circumstances wbicb may be pertinent and may qualify tbe duty to look and listen are obstructions wbicb prevent tbe exercise of tbe sense of sight and bearing; tbe condition of tbe crossing; tbe use made of tbe track over wbicb tbe crossing runs; tbe knowledge and familiarity of tbe person witb tbe crossing and other circumstances.
In this case there is no evidence of an obstruction wbicb would have prevented tbe intestate from seeing tbe approaching train, but if tbe evidence is considered in tbe most favorable light for tbe plaintiff, wbicb we must do upon a motion for judgment of nonsuit, it appears that tbe intestate was comparatively a stranger in Charlotte and was not familiar witb tbe crossing and its surroundings; that tbe crossing was on a spur-track running to industrial plants and was not regularly used; that it .was not generally used in going to' tbe industrial plants early in tbe day, tbe time that tbe intestate was killed; that there was no sign at the-crossing; that tbe rails of tbe spur-track were practically level witb the ground and could not be easily discovered by reason of earth left thereon by tbe frequent passing of vehicles across them; that when tbe intestate-came near to tbe crossing tbe train, wbicb afterwards struck her, was on tbe main line and that it came upon tbe spur-track without ringing-a bell or blowing a whistle, witb tbe engine pushing a car in front of it, and witb no man on tbe rear of tbe car; that it was making no noise, and it struck tbe intestate from behind.
Tbe inference may be drawn from this evidence that tbe crossing was in such condition that one unacquainted witb tbe surroundings and in tbe exercise of ordinary cáre might approach it without knowing that there was any railroad track, or if tbe track was discovered, might reasonably believe that it was not in use.
As was said in Doyle v. R. R., 139 N. Y., 637, upon facts similar to-those in this case: “But tbe circumstances are to be considered. She-was rightfully on a public street, walking on the south sidewalk in the-direction of tbe coming train. She did not know of this isolated track of tbe defendant. Its existence was not indicated by tbe conformation of tbe ground, nor by any flagman or flaghouse or other sign. If her attention bad been challenged by a bell or whistle, this deception might have been corrected in time to have prevented any injury. We think it was for tbe jury to say, under all tbe circumstances, whether tbe plaintiff exercised ordinary prudence and care.” ’
We express no opinion upon tbe weight of tbe evidence, but‘think it is sufficient to entitle tbe plaintiff to have it considered by a jury.
Eeversed.