189 S.E. 177 | N.C. | 1937
Civil action to recover damages for death of plaintiff's intestate, alleged to have been caused by the wrongful act, neglect, or default of the defendant.
Plaintiff's intestate, a boy ten years of age, was fatally injured on the afternoon of 24 April, 1935, when struck by defendant's train at Rowan Street crossing in the city of Fayetteville. There are five tracks at this crossing, two sidetracks, a pass track, and two main-line tracks. It is used extensively, day and night, by vehicular and pedestrian traffic, including children living in the vicinity as well as those attending the Normal School near the crossing. At this point the railroad runs practically north and south, while Rowan Street runs east and west.
Plaintiff's intestate was walking westwardly along Rowan Street. As he approached the crossing, a shifting engine, with cars attached, passed on the eastward track going in a northerly direction. As soon as this shifting engine and cars cleared the crossing, plaintiff's intestate started across the track, "running or walking," and was struck by the engine of No. 89, southbound passenger train on the westward track, which was running at a high rate of speed, in violation of city ordinance, and without signal or warning of its approach.
From a judgment of nonsuit entered upon demurrer to the evidence, plaintiff appeals, assigning error.
The basis of the nonsuit is that plaintiff's intestate was contributorily negligent as a matter of law under authority of Tart v. *115 R. R.,
It was conceded on the argument that, had plaintiff's intestate been an adult, the judgment of nonsuit would probably have been correct. Rimmer v.R. R.,
There is a presumption which comes to the aid of a child of tender years. Caudle v. R. R.,
Speaking to the subject in Rolin v. Tob. Co.,
Likewise, in approval of the position are the decisions in Morris v.Sprott,
Reversed. *116