after stating the case: It appears, from the circumstances detailed above, that, at the close of plaintiff’s evidence, a clear case of contributory negligence had been made out and that the defendant’s motion for judgment as of nonsuit, first interposed at that time, should have been allowed. This was practically conceded on the argument, but plaintiff stressfully contends that the. testimony of James Castor, offered in rebuttal, is sufficient to carry the case to the jury, as only the exception noted at the close of all the evidence may now be considered. Harper v. Supply Co., 184 N. C., 204, 114 S. E., 173.
*660The exception addressed to tbe refusal of the court to grant the defendant’s motion for judgment as of nonsuit, made at the close of plaintiff’s evidence, has been waived under the express provisions of the statute. C. S., 567. The defendant had the right to rely upon the weakness of the plaintiff’s case, when he rested, but the defendant having elected to offer evidence, did so cum onere, and only the exception noted at the close of all the evidence may now be urged or considered. Nash v. Royster, 189 N. C., 408, 127 S. E., 356. In considering the' last motion, the defendant’s evidence, unless favorable to the plaintiff, is not to be taken into consideration, except when not in conflict with the plaintiff’s evidence, it may be used to explain or make clear that which has been offered by the plaintiff. S. v. Fulcher, 184 N. C., 663, 113 S. E., 769.
Conceding the soundness of the rule just stated, defendant takes the position that the answers appearing in the testimony of James Castor, which seem favorable to the plaintiff’s case, are merely argumentative deductions of the witness, based on a fanciful hypothesis, as there was no evidence of any smoke, and that such deductions are without any probative value as evidence and ought not to be permitted to carry the case to the jury. A critical examination of the testimony of this witness leaves us with the impression that the defendant’s view of the matter is correct.
True, this witness seemingly testifies both ways, for and against each party, and such equivocation would ordinarily carry the case to the jury. Shell v. Roseman, 155 N. C., 90, 71 S. E., 86. But his statements to the effect that plaintiff’s intestate could not “see anything of the train,” or “towards the south,” because of smoke, must be regarded as chimerical or merely conjectural, as it is established by the testimony of eye-witnesses that there was nothing between the eastern track and the embankment — a distance of from 10 to 15 or 20 feet — to keep him from seeing, had he looked. In its present state, the law is not able to protect one who has eyes and will not see — ears and will not hear. Fursl v. Merritt, 190 N. C., 397, 130 S. E., 40.
The rights of persons and things ought not to rest, and the law will not permit them to depend, upon the uncertain testimony of a witness who is willing to say that a man cannot see when there is nothing to keep him from seeing. If such statements are without foundation in fact, as they are on this record, they must be held to be without probative value as evidence in law. To hold otherwise would be to surrender to the tyranny of a fetishism on wholly unsubstantial grounds.
It was the duty of plaintiff’s intestate to look attentively, up and down the track, in time to save himself, if not prevented from doing so by the fault of the defendant or other circumstances clearing him from *661blame, and tbis, under numerous decisions, is required to be done at a time wben bis precaution may be effective. Holton v. R. R., 188 N. C., 277, 124 S. E., 307; Cooper v. R. R., 140 N. C., 209, 52 S. E., 932.
Tbe evidence of contributory negligence on tbe part of plaintiff’s intestate, coming from plaintiff’s own witnesses, witb none to exculpate, is certainly as strong, if not stronger, on tbe present record, tban tbat ap-pearmg in tbe case of B. & O. R. R. Co. v. Goodman, 48 S. Ct., 24, decided 31 October, 1927, where Mr. Justice Holmes, speaking for a unanimous Court, said: “Wben a man goes upon a railroad track be knows tbat be goes to a place where be will be killed if a train comes upon him before be is clear of tbe track. He knows tbat be must stop for tbe train and not tbe train stop for him. In such circumstances it seems to us tbat if a driver cannot be sure otherwise whether a train is dangerously near be must stop and get out of bis vehicle, although obviously be will not often be required to do more tban to stop and look. It seems to us tbat if be relies upon not hearing tbe train or any signal and takes no further precaution be does so at bis own risk. ... It is true, as said in Flannelly v. Delaware & Hudson Co., 225 U. S., 597, 603, 32 S. Ct., 783, 56 L. Ed., 1221, 44 L. R. A. (N. S.), 154, tbat the question of due care very generally is left to tbe jury. But we are dealing witb a standard of conduct, and wben tbe standard is clear -it should be laid down once for all by tbe courts. See Southern Pacific Co. v. Berkshire, 254 U. S., 415, 417, 419, 41 S. Ct., 162, 65 L. Ed., 335.”
Tbe standard laid down in tbis case is but another way of stating tbe rule of the prudent man, as will be observed from an attentive reading of tbe language used by tbe learned Justice who wrote tbe opinion. He does not say that it is tbe duty of a driver of a vehicle, on approaching a railroad crossing, to “stop and get out,” but such precaution is required only in case be “cannot be sure otherwise whether a train is dangerously near.” WLen a man goes upon a railroad crossing, necessarily a place of danger, be must take such care and precaution for bis own safety as a reasonably prudent man would take under tbe same or similar circumstances.
Tested by tbis standard, it would seem that tbe death of plaintiff’s intestate was unquestionably due to bis own negligence, or tbat such negligence, concurring and cooperating witb tbe negligence of tbe defendant, was tbe real, efficient and proximate cause of tbe injury, or tbe cause without which tbe injury would not have occurred. Elder v. R. R., ante, 617.
Nor is tbis rule essentially different from the one heretofore established by our own decisions. It is universally held tbat there can be no recovery of damages where tbe negligence of tbe traveler contributes *662proximately to bis own injury, tbougb tbe railroad company may also be guilty of negligence. Thompson on Negligence, sec. 1605.
Speaking to the question in Coleman v. R. R., 153 N. C., 322, 69 S. E., 261, Brown, J., delivering the opinion of the Court, said: “A railroad crossing is itself a notice of danger, and all persons approaching it are bound to exercise care and prudence, and when the conditions are such that a diligent use of the senses would have avoided the injury, a failure to use them constitutes contributory negligence and will be so declared by the Court.” Proceeding, he quotes with approval the following from Beach on Contributory Negligence (sec. 181) : “ ‘In attempting to cross, the traveler must listen for signals, notice signs put up as warnings, and look attentively up and down the track, and a failure to do so is contributory negligence which will bar recovery. A multitude of decisions of all the courts enforce this reasonable rule.’ ” Continuing, he says: “There are of course exceptions to this, as well as most other rules, but when the traveler ‘can see and won’t see’ he must bear the consequences of his own folly. His negligence under such conditions bars recovery because it is the proximate cause of his injury. He has the last opportunity to avoid injury and fails to take advantage of it.”
The same rule was again declared in Johnson v. R. R., 163 N. C., 431, 79 S. E., 690, where Walker, J., speaking for the Court, used the following language: “On reaching a railroad crossing, and before attempting to go upon the track, a traveler must use his sense of sight and of hearing to the best of his ability under the existing and surrounding circumstances — he must look and listen in both directions for ap-jDroaehing trains, if not prevented from doing so by the fault of the railroad company, and if he has time to do so; and this should be done before he has taken a position exposing him to peril or has come within the zone of danger, this being required so that his precaution may be effective.”
In Trull v. R. R., 151 N. C., 545, 66 S. E., 586, the plaintiff’s intestate was standing on a crossing near the main line of defendant’s railroad, waiting for a train to clear the track further on his way. While in this position, a shifting engine, engaged in work on the main line, passed down the track, going to a water tank, some distance away. In a short time the engine returned and slowed down at a switch thirty or forty steps from the crossing. The fireman got out, changed the switch, and the engine continued its course on to the crossing, without giving the usual signals. Just at the crossing, and at the precise time of the impact, plaintiff’s intestate stepped from a position of apparent safety onto the track, in front of the moving engine, and was killed. The track here was straight; there was nothing to obstruct the view, and, so *663far as tbe evidence disclosed, there was nothing to explain or qualify the intestate’s obligation to look and listen and be otherwise properly attentive to his own safety. Upon this showing, the Court held, as a matter of law, that plaintiff’s intestate was guilty of negligence, concurrent with that of defendant’s employees, and sustained a judgment of nonsuit.
The evidence offered by the plaintiff, it seems to us, clearly shows that plaintiff’s intestate failed to take proper care and precaution for his own safety, hence it must be declared that, under established rules of law, judgment of nonsuit should have been entered on all the evidence.