The evidence paints the following picture: The defendant operates through the town of Enfield two parallel tracks, designated as a southbound track and a northbound track. A pedestrian using a much frequented path starts across the tracks. A freight train is slowly moving on the northbound track. He stands upon the southbound track, waiting for the freight train to clear, and as the caboose passes him, a man on the caboose says something to him. "While thus standing on the southbound track a fast passenger train is rushing down upon him at the rate of fifty or sixty miles an hour, without the sound of whistle or bell and in violation of an ordinance of the town. The pedestrian does not look in the direction from which the passenger train is approaching, and perhaps never knew what struck him. The killing occurred at about nine o’clock in the morning of a clear day and the vision of the pedestrian was unobstructed for a distance of approximately a half mile.
Upon the foregoing facts three propositions of law must be considered in order to determine ultimate liability:
First: The defendant railroad company was guilty of negligence. This conclusion has been so frequently announced by the court in similar cases that it is unnecessary to cite authorities.
Second: The pedestrian was guilty of contributory negligence. In the daytime on a clear day he was standing on a live track without looking or otherwise taking any precaution for his own safety, and stood there until a fast passenger train snuffed out his life. Consequently he was guilty of contributory negligence, which continued up to the moment of the impact.
Three: Is the doctrine of “last clear chance” applicable ? This inquiry must be answered in the negative. It is said in Redmon v. R. R., 195 N. C., 764, 143 S. E., 829: “The doctrine does not apply when contributory negligence of the injured party barred recovery as a matter of law. Otherwise contributory negligence would totally disappear.
Affirmed.