Ashby v. Norfolk Southern Railroad, 172 N.C. 98 (1916)

Sept. 27, 1916 · Supreme Court of North Carolina

172 N.C. 98

ARCHIE P. ASHBY v. NORFOLK SOUTHERN RAILROAD COMPANY.

(Filed 27 September, 1916.)

1. Railroads — Push Cars — Children—Dangerous • Places — Trials—Evidence— Megligence — Questions for Jury.

Evidence tending to show that employees of defendant railroad company were operating a push-car loaded with cross-ties on defendant’s track, and asked plaintiff, a boy 8 years of age and some other children to help push the car to a switch to clear the track for an expected train; that to pass a trestle the lad jumped upon the car, and to avoid a cattle-> guard 700 yards beyond, and being warned thereof by the employees, the plaintiff again attempted to jump upon the car, but fell, to his injury; that the foreman of the gang saw the boy thus engaged and did not object; Held, upon a motion to nonsuit, sufficient evidence of defendant’s actionable negligence to take the case to the jury.

2. Contributory Negligence — Children—Trials—Evidence—Questions of Law.

A lad 8 years of age, injured while assisting, at their reqquest, the defendant’s employees in pushing a car loaded with cross-ties, and injured while endeavoring to jump on the car to ride across a cattle-guard, was too young to be guilty of contributory negligence under the facts of this case.

8. Railroads — Children—Dangerous Places — Push Cars — Negligence.

Where the defendant railroad company’s employees operating a push-car loaded with cross-ties invited or permitted a lad 8 years of age to help them, in consequence of which he was injured, and this conduct of the boy had been seen by the foreman of tliegang without objection; Held,, the company was liable, though it had theretofore forbidden its employees to permit children to thus help them.

4. Same — Duty of Company.

The plaintiff, a lad of 8 years, was injured while assisting employees of defendant railroad company to push a car loaded with cross-ties along the track, at their request, with the knowledge of the foreman. Held, it was not only the duty of the defendant to order the child away from the track, but it should have seen that he went away.

Appeal by plaintiff from Whñdbee, J., at February Term, 1916, of CRAVEN.

Q. A. Yorh, A. D. Ward, and William F. Ward for plaintiff.

Moore & Dunn for defendant.

Clare, 0. J.

Tbis is an action for personal injury to a minor, at tbe time of tbe injury 8 years of age, wbo brings tbis action by bis next friend. Tbe employees of tbe defendant were operating a pusb-ear loaded witb cross-ties under tbe supervision of tbe section master. There was evidence tbat one of tbe employees asked tbe plaintiff and two or three other small boys to help push tbe car to tbe switch before tbe arrival of an approaching train, and tbat when tbe car ajiproaehed tbe trestle one of tbe boys, witb tbe knowledge and without objection of tbe employees or tbe foreman, jumped on tbe car and rode across; tbat they continued to push tbe car for several hundred yards till they approached a cattle-guard across tbe track in which there were sharp iron pointers which tbe plaintiff was unable to walk upon witb bis bare feet, and being cautioned by tbe foreman to “look out” for tbe cattle-guard, tbe plaintiff in attempting to climb upon tbe car to ride across slipped and fell, tbe wheel of the car passing over bis foot. There was evidence that' the child was not invited by tbe employees and tbat tbe section master in charge bad no knowledge of bis participating in pushing tbe car. Rut there was evidence for tbe plaintiff tbat one of tbe employees asked tbe boys to help push the car, and also tbat tbe foreman saw tbe boys pushing tbe car and made no objection. Upon a nonsuit tbis evidence must be taken as true, and, if true, it was negligence for tbe defendant through its foreman to permit a child of tbe age of tbe plaintiff to participate in such dangerous work witb its great liability of injury to those wbo are not presumed to have judgment to avoid tbe dangers incident to such work.

If tbe railroad employees invited or permitted tbe plaintiff to take part in pushing tbe car tbe company was liable, though tbe company bad forbidden tbe employees to permit tbis to be done. 33 Oyc., 819. It was not only tbe duty of tbe defendant to order tbe child away from its tracks and from moving cars, but it should see tbat be does go away. 33 Cyc., 769, and cases there cited. If tbe boy was there for that length of time, it was negligence if the foreman did not discover the child and make him leave.

In Greer v. Lumber Co., 161 N. C., 146, the Court held that there being evidence that the foreman permitted the children to ride on the engine, it was actionable negligence not to require them to leave.

Contributory negligence cannot be attributed to a child of the age of the plaintiff at the time of this injury.

The judgment of nonsuit is

Reversed.