182 S.E. 490 | N.C. | 1935
DEVIN, J., took no part in the consideration or decision of this case. The plaintiff's intestate, a child of less than six years of age, was burned to death. It is alleged that he was playing in a vacant lot, used by children of the neighborhood as a playground, and that one of his companions procured a can of gasoline from a bucket or tub on the sidetrack running from the mainline tracks of the defendant railroad company to the storage tanks of the defendant oil company, and carried the gasoline so procured to the playground, which was near by, and that the intestate's clothing became soaked with gasoline from the can, and that some companion struck a match, which ignited the intestate's clothing, and so burned him as to cause his death. It is alleged that the gasoline had been left in a bucket or tub by the servants of the oil company, who were engaged in unloading the gasoline from a tank car to a storage tank, and that said bucket or tub had been so placed as to catch the gasoline that leaked from the defective connection between the car and storage tank. While it is alleged that the railroad company knew that the vacant lot near its tracks was used as a playground by the children living near by, and that it left the gasoline unguarded on the sidetrack, there is no allegation that the defendant railroad company had notice, either actual or constructive, that children were attracted upon its tracks or sidetracks for the purpose of getting gasoline, or for any other purpose, and there is no allegation that children were actually so attracted, or that they habitually went upon such tracks, so their presence there and injuries to them could be anticipated.
Since there are no facts alleged which constitute a breach of duty owed by the defendant railroad company to the plaintiff's intestate, the judgment of the Superior Court is
Affirmed.
DEVIN, J., took no part in the consideration or decision of this case. *768