181 F.2d 744
NORFOLK & WESTERN RY. CO.
United States Court of Appeals Fourth Circuit.
Argued April 17, 1950.
Decided May 3, 1950.
Wilson Barber, Mount Airy, N. C., for appellant.
Kerr Craige Ramsay and Robert V. Brawley, Winston-Salem, N. C. (W. W. Coxe, Roanoke, Va., on brief), for appellee.
Before PARKER, SOPER and DOBIE, Circuit Judges.
This is an appeal by the plaintiff from an adverse judgment in a railroad crossing accident case heard by the trial judge without a jury. Plaintiff is the administratrix of Homer Flippin who was killed in the accident and who was riding at the time with his brother Coy Flippin in the front seat of the latter's automobile. The evidence is that Coy Flippin drove upon the track in front of the oncoming train which was traveling at a speed of forty-five miles per hour at a crossing where the track in the direction from which the train was coming was straight for a distance of four-tenths of a mile. This occurred in the day time, and, although Coy Flippin testified that he looked and listened before driving upon the track, there was nothing to obstruct his vision or to prevent his hearing the noise of the oncoming train. We agree with the learned judge below that, under the law of North Carolina, plaintiff was not entitled to recover. Jeffries v. Powell, 221 N.C. 415, 20 S.E.2d 561; Hensley v. Southern Ry. Co., 230 N.C. 617, 54 S.E.2d 926.