76 S.E. 725 | N.C. | 1912
This is an action to recover damages for causing the death of the plaintiff's intestate by the negligence of the defendant, as alleged in the complaint. The defendant is a corporation owning a lumber plant and operating logging trains, and was running one of its trains at the time hereinafter mentioned. On or about 15 December, 1910, the deceased, about 10 years old, and her brother, a small boy, were at a water tank on defendant's road near Gentry's Creek, Tenn. The children lived about 4 miles from this place, at Stikesville, N.C. While the children were at the tank the defendant's logging train pulled (145) up and stopped there to get water. The children had seen other children ride on defendant's train and had been permitted to ride themselves, so they asked the fireman to let them ride on the engine, across the mountain, to their home. He gave the permission, and they got on the tailboard of the tender of the engine, a little step used by brakemen in switching. He gave them permission to ride in this position. It was customary to let children ride on the train when they asked to do so. About halfway up the mountain, the logging train went out on a switch-back, a "device" for reversing the engine so as to "grade" the mountain. At this place, the flagman saw the children and spoke to them, but never told them to get off, nor did he tell them that they were in a dangerous position. The engine moved ahead with the children on the tailboard. When the train reached a point about 79 steps from the home of the deceased, her father saw his children on the tailboard and in a dangerous position. He had forbidden the trainmen to permit his children to ride on defendant's trains. The train was in full view of his house all of the way from the place where he saw the children to the place where the little girl was killed. On seeing his children in a dangerous position, he ran out and hailed the fireman and conductor and signaled to them that the children were in a perilous situation, and for them to stop, so that the children could step off. He gave the signal to stop, and continued to halloo and to give signals until the little girl was injured. He knew the right signal, as he had been a track-walker. The fireman and engineer were looking at him, but failed to stop. They could have heard him but failed to stop. They could have heard him, for the son, who was on the tailboard with the deceased, heard his halloo. The engine passed by him, within a few feet of him, and all of the time he was trying to get them to stop and let the children off, but they would not. After the engine had passed by the place for the children to get off, the little girl jumped off or fell off. She fell on the track, the engine ran over her, and from her injuries she died. The fireman, who let them get on the engine, knew where they lived. The fireman could see the *118 children on the tailboard, and the engineer could also, at the (146) switch. He could have seen the little girl when she fell, if he had been looking. The engine was moving very slowly and he was not attending to his duties at the time. The engine could have been stopped within a foot or 2 feet. It moved 8 or 10 feet after the little girl fell, before it struck her. After it struck her, it dragged her in the wheels for 15 feet or more. When she fell, her brother gave the alarm, but the engine was not stopped until the deceased's brother had taken her out of the wheels by the hair of the head, after the engine had reversed its course to go onto another track.
After hearing the testimony, the court nonsuited the plaintiff, and he appealed.
After stating the case: As this is a nonsuit, we must consider the evidence in the most favorable view for the plaintiff. Beck v.Bank, post, 201, and cases cited. The question is, whether there was any evidence which should have been submitted to the jury, and we are of the opinion that there was. We do not rest our decision of the case upon the ground that the fireman permitted the two children to ride on the engine (Dover v. Manufacturing Co.,
We, therefore, recur to the further consideration of the main question as to defendant's negligence, and in regard to it, we find that the courts have practically decided this very point, upon facts closely resembling those in this case, and sufficiently so to make their decisions valuable, if not authoritative, precedents. A case much like ours is Ashworth v. R.R.,
In R. R., v. Abernathy, supra, the facts were that a boy 10 years old and of ordinary intelligence was told not to go about the train, (150) as he might be killed or hurt, but was not told how it might occur. Just before the accident, he was seen on the pilot of the tender, which was part of a work train, near his father's premises, and in some way, while the train was moving slowly, he was thrown or fell from the pilot, and was killed. It did not appear that the employees of defendant knew that he was there, although there were circumstances from which they might have discerned his dangerous position. The Court held that it was a case for the jury. And so in Biddle v. R. R., supra, it was said, generally, to be very true that extra precautions are not required to guard against the intrusions of trespassers, even though they be children, "but when they do so intrude, and are known to be in an improper place, they must not be so wholly neglected as to endanger their lives or limbs. Any other doctrine would so illy accord with Christian civilization as to render its maintenance impossible. It follows from what we have said that the court below, instead of ordering a peremptory nonsuit, ought to have sent the case to the jury." R. R. v. Burgess,
The reasons we have given and the authorities cited would seem to be sufficient to show the error in withdrawing this case from the jury and directing a nonsuit. There are other facts and circumstances which entitled the plaintiff to be heard by a jury, which we have not, as yet, noticed. It is in evidence that it was customary for children to ride on the engine or tender, a most dangerous practice. The defendant should exercise more care and prudence in such matters. Besides, when the train approached the father's home, he signaled the engineer and fireman to stop, as he had seen his two children in a dangerous position on the tailboard, and became apprehensive for their safety; but his frantic warning was not heeded, although he was seen, so he says, and should have been heard, so the boy said, by them. This was evidence of negligence to be submitted to the jury. Of course we have considered the case as if the evidence adduced by the plaintiff gives a correct account *122 of the matter, as we are required to do under the well-established rule, because the jury may have found it to be so if it had been (151) submitted to them. It may be that the defendant will be able to satisfy them, upon all the evidence, that such is not the case, and a very different view of the question may be presented to them. The error of the court consists in not giving the plaintiff the opportunity of having the facts passed upon by the jury, when there was some evidence of negligence.
New trial.