It is not contended by tbe learned counsel for tbe ap-pellee in this appeal tbat there was no evidence at tbe trial of this action in tbe Superior Court sufficient to sustain tbe allegations in tbe complaint to tbe effect tbat plaintiff was injured by tbe negligence of defendant, as alleged therein. Tbe contention is tbat tbe evidence offered by tbe plaintiff, considered in tbe light most favorable to him, shows tbat be contributed to bis injuries by bis own negligence, and tbat be is therefore barred of recovery in this action. Tbe principle upon wbicb this contention is made is well settled by this Court. Harrison v. R. R., 194 N. C., 656, 140 S. E., 598. It was applied by tbe Supreme Court of tbe United States in Baltimore & Ohio Railroad Co. v. Goodman, 72 L. Ed., 167. We do not think, however, tbat tbe principle is applicable on this appeal. In an action for tbe recovery of damages resulting from injuries caused by tbe negligence of tbe defendant, where tbe defendant relies upon tbe contributory negligence of tbe plaintiff, as a bar to bis recovery, tbe burden is upon the defendant on tbe issue involving this defense. It is so provided in this State by statute. C. S., 523. Ordinarily, tbe question whether plaintiff .was guilty of contributory negligence is to be determined by tbe jury. It is only when a clear case of contributory negligence bas been made out by tbe evidence offered by tbe plaintiff, tbat a motion by tbe defendant for judgment as of nonsuit, on tbat ground, should be allowed.
*698In Plyler v. R. R., 185 N. C., 351, 117 S. E., 297, conti’ibutory negligence is defined as “such act or omission on the part o£ the plaintiff, amounting to a want of ordinary care, as concurring and cooperating with the negligence of the defendant becomes the proximate cause of the injury.” It is to be determined by existing conditions, and not by hypotheses or contingencies.
In Holton v. R. R., 188 N. C., 277, 124 S. E., 307, it is said: “It is the recognized duty of a person on or approaching a railroad crossing to 'look and listen in both directions for approaching trains if not prevented from doing so by the fault of the railroad company or other circumstances clearing him from blame’; and where, as to persons, other than employees of the company, there has been a breach of this duty clearly concurring as a proximate cause of the injury, recovery therefor is barred. Plyler v. R. R., 185 N. C., 357, 117 S. E., 297; Davidson v. R. R., 171 N. C., 634, 88 S. E., 759; Coleman v. R. R., 153 N. C., 322, 69 S. E., 251; Trull v. R. R., 151 N. C., 545, 66 S. E., 586.”
In the instant case, there was evidence tending to show that before he drove his automobile on the crossing, plaintiff both looked and listened for an approaching train. It is true that he knew that because of the fog he could not see beyond the length of his automobile. There was no evidence that there were any conditions surrounding him which prevented him from hearing a whistle, or a bell or other signal. Realizing that because of the fog, he could not safely rely upon his sense of sight, he also listened. When he heard no whistle, or bell, or other signal, he assumed that there was no train approaching the crossing, and therefore that he could safely drive over defendant’s tracks. Plaintiff drove his automobile from a place of safety to a place of danger only after he had both looked and listened. The evidence does not show a situation in which plaintiff was required to do more than look and listen. The situation, as shown by the evidence, was not such as to require plaintiff as a prudent man to get out of his automobile and make further investigation before exercising his right, under the law of this State, to use its highways, even where they cross a railroad track.
Whether or not plaintiff’s conduct was that of a prudent man, is a question which, upon the evidence, he had a right to have determined by a jury. There was error, in the judgment dismissing his action. The judgment is