The defendant insisted with quite good fortune in the court below that the case sub judice is controlled by the decision in Lemings v. R. R., 211 N. C., 499, 191 S. E., 39, where a nonsuit was sustained when a drunken pedestrian was killed by a moving train while he was sitting on a crosstie, with his elbows on his knees, and with his head between his hands. ¥e think the two cases are sufficiently different to lead to opposite results so far as the motions to nonsuit are concerned. Here, there is evidence permitting the inference that plaintiff’s intestate and his companion were down on the track apparently in a helpless condition, while in the Lemings case, supra, no such evidence appeared.
The instant ease falls within the line of decisions of which Henderson v. R. R., 159 N. C., 581, 75 S. E., 1092, and Jenkins v. R. R., 196 N. C., 466, 146 S. E., 83, may be cited as fairly illustrative. In Cummings v. R. R., ante, 127, the pertinent authorities are reviewed and the principles of liability and nonliability in such cases clearly stated. What was there said is applicable here. To reiterate the substance of that opinion would only be to plow again the field which has been so recently furrowed with accuracy and precision.
On the record as presented, there was error in withholding the case from the jury