On a motion of nonsuit in an action for negligence, contributory negligence, being a matter of defense, is not to be considered. Whitesides v. R. R., 128 N. C., 229, which has been cited, as authority that on evidence such as in this tbe case should be submitted to the jury. Holman v. R. R., 159 N. C., 46; Shepherd v. R. R., 163 N. C., 521.
According to the plaintiff’s testimony, be was seeking to cross tbe railroad track on bis way home from bis place of work. He turned up tbe track to get around a work train on tbe main or Asheville track, which was blocking bis passage. He says he looked around and saw no train on the other or Charlotte track, and stepped upon that, as he saw no train on it and beard no signal or blow; that while on tbe track for tbe purpose of going around tbe standing train be was struck from behind by an approaching train on tbe other track from Charlotte, which came around a sharp curve, without blowing'the whistle or giving other warning, and which was 20 minutes late, and was knocked unconscious. His legs were crippled, and one leg cut half in two; bis collar bone was broken, bis bead was injured, and be was in tbe hospital several weeks. Witness further stated that be helped build tbe Statesville Furniture Factory 20 years ago, and has worked there ever since it was built; these railroad tracks were there then, and there was a street across tbe track, but vehicles do not cross it now, it being used only by pedestrians. He *595says further, that in going around the train upon the other track he looked back in the direction from which this Charlotte train came and stepped up near the track; that if the train had blown he would have heard it.
The above, in brief, is the substance of the testimony. The plaintiff says there was no signal given or whistle blown. The engineer says there was, and the jury found in accordance with the plaintiff’s testimony. The court, at the close of all the evidence, denied the motion for a non-suit. This was simply a question of fact, and as the evidence on such a state of facts tending to show contributory negligence cannot be considered on such motion, the judgment refusing the motion to nonsuit must be
Affirmed.