The evidence offered by plaintiff presents substantially the following situation: A traveler in an automobile approaches a grade crossing in the day time with which he is thoroughly familiar. He stops about forty-five or fifty feet from the first track and looks and listens, and neither hears nor sees the train. His vision is obstructed by willow trees at the point where the stop is made. Thereupon he proceeds toward the first track, apparently without stopping, looking or listening until the wheels of his car were on thé first track. He then hears the whistle of a train and looks up and discovers a rapidly moving passenger train bearing down upon him, twenty-five or thirty yards away. The train is on the second track and the traveler in his own words “drove on trying to get off the track, and the car was struck by the train.”
There was evidence that the crossing was rough and that the rails of the second track were fifteen or twenty inches higher than the rails of the first track, but no evidence is offered tending to show that the car of the traveler became engaged with the rails or that the rough condition of the crossing contributed to the injury. Within ten or fifteen feet of the first track the traveler had an unobstructed vision of two hundred yards to the south of the crossing, and the train was approaching from the south, traveling northward.
The Court is of the opinion that the facts classify this case in that line of decisions represented by Trull v. R. R., 151 N. C., 545, 66 S. E., 586; Coleman v. R. R., 153 N. C., 322, 69 S. E., 129; Bailey v. R. R., 196 N. C., 515, 146 S. E., 209; Eller v. R. R., 200 N. C., 527, 157 S. E., 800,