There was sufficient evidence of negligence and of contributory negligence, and as the jury answered both of these issues in the affirmative, the determinative question is whether the trial judge should have submitted to the jury the issue of last clear chance.
Peril and the discovery of such peril in time to avoid injury constitutes the back-log of the doctrine of last clear chance. Was the plaintiff’s intestate in a situation of peril at the crossing ? Did his car stall on the track? Did he look and listen before attempting to cross? The evidence does not speak upon any of these questions. Manifestly he was in a position of peril when his car was driven upon the track in the ordinary act of crossing, because the train was at hand. Consequently the inquiry must shift to the engineer of the train. How far was the train from the crossing when plaintiff’s intestate entered upon the track? Could the engineer in the exercise of ordinary care have stopped the train and prevented the collision after he discovered or should have discovered that the intestate was attempting to cross the track or in a position of peril or so obviously insensible of impending danger as to put the engineer on guard? The evidence does not speak clearly on any of these questions, although there are certain uncontradieted excerpts of testimony which shed light upon the situation. The fireman declared that *20the engineer “could have seen the ear when he saw the car was going to come on across anyway he threw his brakes in emergency.” The fireman further said: “At the time he applied his brakes in emergency he was fifty to one hundred feet from the crossing.” The trainmaster said: “From my experience, under the conditions existing at this crossing on the morning of the accident, if the train approached this crossing at a speed of thirty miles an hour, if the brakes were applied in emergency, everything working one hundred per cent, the train could not have been stopped in my opinion, in less than seven hundred and fifty to a thousand feet, which would be from three to four train lengths. That train was approximately 250 feet long. The lighter the train, the less momentum, and the quicker you can stop the train; you could stop a train quicker with three cars and a locomotive than you could with ten cars, because the weight and momentum is less.” ■ The foregoing excerpts from the testimony were uncontradicted and constitute the sole evidence upon the points indicated.
The burden of the issue of last clear chance is upon the plaintiff, and such issue is not applicable unless there is evidence to support it. Redmon v. R. R., 195 N. C., 764, 143 S. E., 829. A liberal interpretation of the testimony fails to disclose any evidence that the engineer could have stopped the train or prevented injury after he should have discovered, in the exercise of ordinary care, that plaintiff’s intestate was in a position of peril. Therefore, the issue of last clear chance should not have been submitted to the jury. See Duke Bar Association Journal, May, 1933, p. 84.
Error.
ClaRKSON, J., dissenting.