The  naked  proposition  charged  below  was:  In  the
night  time,  no  person  can  be  guilty  of  contributory
negligence  on  a  railioad  track,  if  the  defendant  is  guilty
of  negligence.
This  proposition  is  new,   but  it  is  clearly  pi'esented
It  is  not  sustained  by  any  precedent.     Can  there  be  any
good  and  just  reason  found  to  support  it?


N.  C]  FEBRUARY  TERM,   1898.  847


PuRNELL  V.  Railroad.
This  is  not  the  case  of  crossing  the  track  when  the
ordinary  duty  of  looking  and  listening  is  condoned  by
there  being  no  light  on  the  approaching  train,  as  in
Mayes  v.  Railroad,  119  N.  C,  758  and  Russell  v.  Rail-
road, 118  N.  C,  1098;  but,  here,  the  intestate  visited
the  station  of  the  defendant  where  he  knew  there  were
six  tracks  with  trains  constantly  coming  and  going,  and
it  was  his  duty  to  exercise  ordinary  care  at  least,  and  to
stand  between  the  tracks  and  not  to  take  his  stand  upon
one  of  the  tracks,  and  especially  not  to  take  his  stand
thereon  without  reasonable  care,  without  any  lookout,
and  with  his  back  to  a  train  which  was  at  that  very
moment  approaching,  ringing  its  bell  as  it  very  slowly
rolled  on.  This  certainly  was  contributory  negligence,
the  jury  should  not  have  been  told  that  it  became  not
contributory  negligence  if  the  defendant  was  negligent.
