As we are of tbe opinion that there was error in tbe refusal of tbe trial court to allow defendants’ motion, at tbe close of all tbe evidence, for judgment as of nonsuit (C. S., 567), we shall not discuss assignments of error on this appeal, presenting defendants’ contentions that there was error in tbe admission of evidence offered by tbe plaintiff, in tbe exclusion of evidence offered by tbe defendants, and in tbe charge of tbe court to tbe jury. Conceding, without deciding, that neither of these assignments of error can be sustained, we are of opinion that there was error in tbe refusal of defendants’ motion for judgment as of nonsuit, and that for this reason tbe judgment should be reversed, and that tbe action should be dismissed.
Conceding, as contended by the plaintiff, that there was no error in the trial of this action with respect to the first, second, third, or fourth issue, we find no evidence in the record tending to support an affirmative answer to the fifth issue. In view of the answer to the fourth issue, the judgment is supported only by the affirmative answer to the fifth issue. There was no evidence tending to show that plaintiff’s intestate as be sat on the crosstie, and as the train approached him, was at any time in a helpless or even an apparently helpless condition. For this reason the principle on which the doctrine of the “last clear chance” is founded is not applicable to this case. See Reep v. R. R., 210 N. C., 285, 186 S. E., 318; Stover v. R. R., 208 N. C., 495, 181 S. E., 336; Rives v. R. R., 203 N. C., 227, 165 S. E., 709. In Reep v. R. R., supra, it is said: “All that the evidence discloses is that the intestate was sitting on the crosstie, with bis bead resting upon the extended fingers of bis right band. This was not sufficient to put the engineer upon notice that the *503intestate would not get off of the track before the engine reached and struck him. There was no evidence that any disability of the intestate was known or was apparent to the engineer. The engineer therefore had a right to assume up to the last moment that the intestate would get off of the track.” In that case, a judgment for the plaintiff was reversed for error in submitting to the jury an issue involving the principle on which the doctrine of the “last clear chance” is founded. The instant case cannot be distinguished from that case.
This case is distinguishable from Jenkins v. R. R., 196 N. C., 466, 146 S. E., 83. In that case it is said: “There was evidence that deceased could not have been seen by a person on the train at a greater distance than about 400 feet, because of a curve in the track; that deceased had gone upon the track as a licensee, and while lawfully walking thereon had become suddenly ill, and for that reason had sat down upon the end of a crosstie; that he was sitting there as the defendant’s train approached him in an apparently unconscious and therefore helpless condition, and that the train which was moving at a rate of speed not less than fifteen miles per hour, could not have stopped at that point within less than 600 feet.” In that case a judgment dismissing the action as of nonsuit was reversed.
In the instant case, there was no evidence tending to show that the deceased was in a helpless condition at any time after he sat down on the end of the crosstie until he was struck and killed by defendant’s train. All the evidence showed that defendant’s engineers saw the deceased as he sat on the end of the erosstie, and gave ample warning to him of the approach of the train. When the engineers realized that the deceased continued to sit on the crosstie, and failed to heed their warning, they put on the brakes of their engines, and exerted themselves to the utmost of their ability to stop the train and avoid striking the deceased. It was then too late. The proximate cause of the injuries and death of plaintiff’s intestate was his negligence, which continued up to the moment when he was struck by defendant’s train. On all the facts shown by the evidence, the doctrine of “the last clear chance” cannot be invoked in this case.
There was error in the refusal of defendants’ motion at the close of all the evidence, for judgment as of nonsuit. The judgment is