Jordan v. Seaboard Air Line Railway Co., 192 N.C. 375 (1926)

Oct. 20, 1926 · Supreme Court of North Carolina

192 N.C. 375

G. H. JORDAN, Administrator, v. SEABOARD AIR LINE RAILWAY COMPANY.

(Filed 20 October, 1926.)

1. Negligence — Evidence—Attractive Nuisance.

In the absence of evidence tending to show that a child was not injured at the place of an “attractive nuisance” alleged to have caused the injury in suit, it was insufficient to be submitted to the jury.

2. Evidence — Conjecture.

Evidence is insufficient to take the case to the jury Which merely raises a conjecture or suspicion.

Civil ACTION, tried before Barnhill, J., and a jury, at April Term, 1926, of WaKE.

This action was instituted to recover damages for the wrongful death of plaintiff’s intestate, James Jordan, who was a bright boy of the age of five and a half years. At the conclusion of all the testimony judgment of nonsuit was entered and the plaintiff appealed.

Douglass & Douglass for plaintiff.

Murray Allen for defendant.

Per CuriaM.

The complaint specifies four eléments of negligence, to wit: First, that the defendant, for several years, had permitted children to play on or near the main line, at Cary, at a place where the signal pipes were located; second, tbat tbe defendant did not stop its train or reduce its speed so as to prevent tbe killing of tbe child; third, tbat tbe defendant’s employees in charge of tbe train did not keep a proper lookout; fourth, tbat tbe defendant failed to remove tbe child from tbe track or warn or notify tbe parents of tbe danger.

Upon a careful examination and scrutiny of tbe entire testimony tbe Court is of tbe opinion tbat there was no evidence of negligence warranting submission of tbe case to tbe jury. All tbe evidence‘was to tbe effect tbat tbe child was not injured at tbe pipes or while on tbe pipes, but at least a car-length from tbe pipes. So tbat, if tbe pipes bad constituted an “attraction to small children,” tbe plaintiff’s intestate was not injured on tbe pipes or by reason of tbe existence or location thereof.

Tbe plaintiff relies upon tbe cases of Powell v. R. R., 125 N. C., 370, and Whitesides v. R. R., 128 N. C., 229. In both of these cases there was evidence tbat tbe injured party was on tbe track at tbe time of receiving tbe injury complained of. In tbe Whitesides case tbe defendant admitted in its answer tbat tbe plaintiff was injured on tbe trestle.

There is no evidence in this record tbat tbe child was on tbe track at tbe time tbe train passed. There was no physical evidence on or about tbe engine showing tbat tbe child bad been struck by it, and tbe last time tbe child was seen before tbe injury shows “be bad moved” and “was standing along by tbe edge of tbe ballast line, five feet from tbe rail.”

Tbe evidence, viewed in its most favorable light to plaintiff, creates no more than a suspicion, or conjecture, which is not sufficient to warrant a submission of tbe question to a jury. Brown v. Kinsey, 81 N. C., 245; Seagrove v. Winston, 167 N. C., 207; S. v. Prince, 182 N. C., 790; S. v. Martin, 191 N. C., 404. Tbe judment as rendered is

Affirmed.