Wilson v. Eureka Lumber Co., 166 N.C. 226 (1914)

May 13, 1914 · Supreme Court of North Carolina

166 N.C. 226

EVANDER WILSON v. THE EUREKA LUMBER COMPANY.

(Filed 13 May, 1914.)

Trials — Negligence—Nonsuit.

In this action to recover damages of the defendant it appears that plaintiff, 5 or 6 years old, was injured while at play with , other children, jumping from a heavy iron tank lying on defendant’s yard. Held, the judgment of nonsuit entered in the lower court will not be disturbed, it appearing that an injury of this character could not have been reasonably anticipated, so far as the record discloses.

Appeal by plaintiff from Webb, J., at September Term, 1913, of LINCOLN.

Civil action to recover damages for injuries caused by alleged negligence of defendant company.

On motion duly entered, there was judgment of nonsuit, under the statute, and plaintiff, having duly excepted, appealed.

A. L. Quichel and C. A. Jones for plaintiff.

L. B. Wetmore and O. E. Childs for defendant.

Peu CuRiam.

The proof showed that on or about 11 February, 1911, plaintiff, a child at that time 5 or 6 years of age, playing on the yard of defendant company, was seriously injured while engaged in climbing up and jumping off a heavy iron tank lying on the yard.

Although the testimony is set out with some fullness of detail, it has failed to apprise the Court of the character, shape, position, and placing of the tank with sufficient definiteness to justify or permit the conclusion that defendant company should be held responsible. It would seem rather to be one'of those unfortunate incidents which the owners could not have reasonably been expected to foresee from any facts observable by them. The cause having been dismissed on judgment of nonsuit, the disposition is not necessarily final, and plaintiff, if so advised and on fuller statement, may be able to present his case in a different aspect; but on the record as it now appears we must hold that there has been no error committed and that the judgment of nonsuit be

Affirmed.