
118 S.E.2d 129 (1961)
253 N.C. 679
Dorothy A. ARVIN, Administratrix of the Estate of Charles Arvin, deceased,
v.
C. R. McCLINTOCK and the Southern Railway Company.
No. 464.
Supreme Court of North Carolina.
January 20, 1961.
*130 Bunn, Hatch, Little & Bunn, Thomas A. Banks, Raleigh, for plaintiff-appellant.
Smith, Leach, Anderson & Dorsett, Raleigh, for defendants-appellees.
*131 WINBORNE, Chief Justice.
The sole question to be decided in case on appeal is whether or not the trial court erred in allowing defendants' motion for nonsuit. Taking the evidence offered upon the trial in the light most favorable to the plaintiff and giving to him the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom, as is done when considering motion for judgment of nonsuit, the conclusion is that the plaintiff's intestate was negligent, as a matter of law, and that his negligence contributed to his untimely death, Clontz v. Krimminger, N.C., 116 S.E. 2d 804, and that the trial court was correct in sustaining defendants' motion for involuntary nonsuit. "Only when plaintiff proves himself out of court is he to be nonsuited on the evidence of contributory negligence." Lincoln v. Atlantic Coast Line R. Co., 207 N.C. 787, 178 S.E. 601, 603. See also Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307.
In the instant case the evidence of the plaintiff shows that the plaintiff's intestate had full opportunity to observe the train and could have avoided going upon the tracks if he had exercised ordinary care. The plaintiff's evidence shows that an oncoming train could be seen 12 to 15 feet from the tracks as an automobile approaches from the direction in question. Indeed, plaintiff's witness Muldrove testified that he saw the train while 90 feet from the crossing. He testified that he followed the plaintiff's intestate to the crossing and that he saw the train when he was 90 feet from said crossing, and that the deceased stopped the truck close to the tracks, and then drove onto the tracks.
There have been similar railroad crossing cases before the Supreme Court. And in this connection the Court has laid down the following principles of law:
1. In Coleman v. Atlantic Coast Line R. Co. 153 N.C. 322, 69 S.E. 251, 252, it is said: "A railroad crossing is itself a notice of danger, and all persons approaching it are bound to exercise care and prudence, and, when the conditions are such that a diligent use of the senses would have avoided the injury, a failure to use them constitutes contributory negligence and will be so declared by the court. Mr. Beach says: `In attempting to cross the traveler must listen for signals, notice signs put up as warnings, and look attentively up and down the track; and a failure to do so is contributory negligence which will bar recovery. A multitude of decisions of all the courts enforce this reasonable rule.' There are of course exceptions to this, as well as most other rules; but, where the traveler `can see and won't see,' he must bear the consequences of his own folly. His negligence, under such conditions, bars recovery because it is the proximate cause of his injury. He has the last opportunity to avoid injury and fails to take advantage of it."
2. In Johnson v. Seaboard Air Line R. Co., 163 N.C. 431, 79 S.E. 690, 695, it is declared: "On reaching a railroad crossing, and before attempting to go upon the track, a traveler must use his sense of sight and of hearing to the best of his ability under the existing and surrounding circumstanceshe must look and listen in both directions for approaching trains, if not prevented from doing so by the fault of the railroad company, and if he has time to do so, and this should be done before he has taken a position exposing him to peril or has come within the zone of danger, this being required so his precaution may be effective."
3. In Dowdy v. Southern R. Co., 237 N. C. 519, 75 S.E.2d 639, 642, "Conceding the existence of negligence on the part of the defendants, which they strenuously deny, this case is controlled by the fact that Dowdy drove his tractor and oil tanker upon the railroad crossing in the face of an on-coming train, which he could have seen in the exercise of ordinary care, if he had looked to the right while he was travelling according to his testimony 25 or 30 feet from the *132 gate to the railroad crossing, or according to actual measurement taken by his witness Rhine 47 feet and 9 inches. If Dowdy had looked to his right while travelling this distance, he could have seen the train and avoided injury. This negligence on Dowdy's part contributed to the injury and damage of all the plaintiffs, and bars recovery, unless they can bring themselves within the doctrine of last clear chance."
4. In Godwin v. Atlantic Coast Line R. Co., 220 N.C. 281, 17 S.E.2d 137, the Court said: "In approaching a grade crossing both the trainmen and travelers upon the highway are under reciprocal duty to keep a proper lookout and exercise that degree of care which a reasonably prudent person would exercise under the circumstances to avoid an accident * * *. A railroad company is under duty to give travelers timely warning of the approach of its train to a public crossing. Yet its failure to do so does not relieve the traveler of the duty to exercise due care for his own safety, and the failure of a traveler to exercise such care bars recovery, when such failure is a proximate cause of the injury."
5. In Irby v. Southern R. Co., 246 N.C. 384, 98 S.E.2d 349, 354, 70 A.L.R.2d 1, it is said: "In the instant case plaintiff knew that he was approaching a railroad, and he knew he was entering a zone of danger. He was required before entering upon the track to look and listen to ascertain whether a train was approaching."
6. In Bcaman v. Southern R. Co., 238 N.C. 418, 78 S.E.2d 182, 184, it is said: "Here the plaintiff was thoroughly familiar with the crossing and the surrounding area. He knew that the tracks to his left curved in a southerly direction. He saw the trees and bushes along the track almost daily. He knew it was a dangerous crossing. It was a clear day and the windows of his automobile were open. He looked to the right and then to the left and there was nothing that he could see coming from the west. He then looked forward and proceeded to cross the track. When he traveled only from seven to nine feet and his right wheel was across the first rail, he saw a train to his left, from 125 to 175 feet from the crossing. Why did he not see the train almost directly in front of him before it had traveled from 125 to 175 feet beyond all obstructions? Was it for the reason he looked once and then looked no more as his evidence seems to indicate?"
7. In Gray v. Carolina & N. W. R. Co., 243 N.C. 107, 89 S.E.2d 807, 808, it is declared: "In the light of the settled principles of law long prevailing in this State that where a railroad track crosses a public highway, though a traveller and the railroad have equal rights to cross, the traveller must yield the right of way to the railroad company in the ordinary course of its business."
8. In Parker v. Atlantic Coast Line R. Co., 232 N.C. 472, 61 S.E.2d 370, 371, the Court said: "It does not suffice to say that plaintiff stopped, looked and listened. His looking and listening must be timely, McCrimmon v. Powell, supra [221 N.C. 216, 19 S.E.2d 880], so that his precaution will be effective. Godwin v. Atlantic Coast Line R. Co., supra. It was his duty to `look attentively, up and down the track', in time to save himself, if opportunity to do so was available to him. Harrison v. North Carolina R. R., supra [194 N.C. 656, 140 S.E. 598]; Godwin v. Atlantic Coast Line R. Co., supra. Here the conditions were such that by diligent use of his senses he could have avoided the collision. His failure to do so bars his right to recover. Godwin v. Atlantic Coast Line R. Co., supra."
9. And in Herndon v. North Carolina R. Co., 234 N.C. 9, 65 S.E.2d 320, 322, it is declared: "Assuming but not deciding that the evidence offered below made out a prima facie case of actionable negligence against the defendants, nevertheless, it is manifest from the evidence adduced that the plaintiff's intestate failed to exercise due care under the surrounding circumstances for his own safety and that such *133 failure contributed to, and was a proximate cause of, his death."
Moreover, having decided that plaintiff's intestate was negligent as a matter of law, the doctrine of last clear chance is not applicable. Redmon v. Southern R. Co., 195 N.C. 764, 143 S.E. 829; Rives v. Atlantic Coast Line R. Co., 203 N.C. 227, 165 S.E. 709; Rimmer v. Southern R. Co., 208 N.C. 198, 179 S.E. 753; Stover v. Southern R. Co., 208 N.C. 495, 181 S.E. 336; Reep v. Southern R. Co., 210 N.C. 285, 186 S.E. 318; Lemings v. Southern R. Co., 211 N.C. 499, 191 S.E. 39; Sherlin v. Southern R. Co., 214 N.C. 222, 198 S.E. 640.
For reasons stated the judgment below is
Affirmed.
BOBBITT, Justice (concurring in result).
I agree that the evidence, when considered in the light most favorable to plaintiff, establishes the contributory negligence of plaintiff's intestate. This bars recovery unless there is evidence sufficient to entitle plaintiff to invoke the doctrine of last clear chance. Since I find no evidence sufficient to warrant the submission of an issue as to last clear chance, I concur in the result.
My dissent is directed solely to this statement in the Court's opinion: "Moreover, having decided that plaintiff's intestate was negligent as a matter of law, the doctrine of last clear chance is not applicable." Similar statements appear in opinions in prior cases. However, in my view, such statements do not express accurately the intended meaning. In any event, they do not express accurately the correct legal principle.
I understand the oft-used expression, "guilty of contributory negligence as a matter of law," means simply that the evidence, when considered in the light most favorable to plaintiff, establishes plaintiff's contributory negligence. But the legal significance of plaintiff's contributory negligence, whether it appears as a matter of law from the evidence most favorable to plaintiff or is determined by a jury on conflicting evidence, is the same.
The doctrine of last clear chance presupposes the defendant was negligent and the plaintiff was contributorily negligent. Barnes v. Horney, 247 N.C. 495, 101 S.E.2d 315; Graham v. Atlantic Coast Line R. Co., 240 N.C. 338, 82 S.E.2d 346; Wade v. Jones Sausage Co., 239 N.C. 524, 80 S.E.2d 150, and cases cited.
"The doctrine of last clear chance, otherwise known as the doctrine of discovered peril, is accepted law in this State. It is this: The contributory negligence of the plaintiff does not preclude a recovery where it is made to appear that the defendant, by exercising reasonable care and prudence, might have avoided the injurious consequences to the plaintiff, notwithstanding plaintiff's negligence; that is, that by the exercise of reasonable care defendant might have discovered the perilous position of the party injured or killed and have avoided the injury, but failed to do so." Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 447, 35 S.E.2d 337, 339, and cases cited; Wade v. Jones Sausage Co., supra, and cases cited.
"To sustain the plea (of last clear chance) it must be made to appear that (1) plaintiff by his own negligence placed himself in a dangerous situation; (2) the defendant saw, or by the exercise of reasonable care should have discovered, the perilous position of plaintiff, (3) in time to avoid injuring him; and (4) notwithstanding such notice of imminent peril negligently failed or refused to use every reasonable means at his command to avoid the impending injury, (5) as a result of which plaintiff was in fact injured." Ingram v. Smoky Mountain Stages, Inc., supra.
My view is well expressed in this statement: "The doctrine of last clear chance does not arise until it appears that the injured *134 person has been guilty of contributory negligence, and no issue with respect thereto must be submitted to the jury unless there is evidence to support it." Irby v. Southern R. Co., 246 N.C. 384, 390, 98 S.E.2d 349, 354, 70 A.L.R.2d 1.
Whether the doctrine of last clear chance is applicable does not depend upon whether the evidence, when considered in the light most favorable to plaintiff, establishes the contributory negligence of his intestate. The doctrine of last clear chance is not applicable here because the evidence was insufficient to support a finding that the defendant saw or should have seen the perilous position in which plaintiff's intestate had, by his own negligence, placed himself, in time to avoid injuring him and under such circumstances failed to exercise reasonable care to avoid the impending injury.
HIGGINS and RODMAN, JJ., join this opinion.
