Ashby v. Norfolk Southern R. Co.

• Citation: 89 S.E. 1059
• Decision Date: 27 September 1916
• Docket Number: 174.
• Parties: L.R.A. 1917F,116, 172 N.C. 98 v. NORFOLK SOUTHERN R. CO. ASHBY
• Court: North Carolina Supreme Court

89 S.E. 1059

L.R.A. 1917F,116, 172 N.C. 98

ASHBY v. NORFOLK SOUTHERN R. CO.

No. 174.

Supreme Court of North Carolina

September 27, 1916

Appeal from Superior Court, Craven County; Whedbee, Judge.

Action by Archie P. Ashby against the Norfolk Southern Railroad Company. Judgment of nonsuit, and plaintiff appeals. Reversed.

It was negligence for a railroad, through its foreman, to permit a boy of eight years of age to help push a car to a switch, and it was liable for the resultant injury, though it had forbidden its employees to permit that to be done.

C. A York, A. D. Ward, and Wm. F. Ward, all of Newbern, for appellant.

Moore & Dunn, of Newbern, for appellee.

CLARK C.J.

This is an action for personal injury to a minor at the time of the injury eight years of age, who brings this action by his next friend. The employés of the defendant were operating a push car loaded with cross-ties under the supervision of the section master. There was evidence that one of the employés asked the plaintiff and two or three other small boys to help push the car to the switch before the arrival of an approaching train, and that when the car approached the trestle one of the boys, with the knowledge and without objection of the employés or the foreman, jumped on the car and rode across; that they continued to push the car for several hundred yards till they approached a cattle guard across the track in which there were sharp iron pointers which the plaintiff was unable to walk upon with his bare feet, and being cautioned by the foreman to "look out" for the cattle guard, the plaintiff, in attempting to climb upon the car to ride across, slipped and fell, the wheel of the car passing over his foot. There was evidence that the child was not invited by the employés, and that the section master in charge had no knowledge of his participating in pushing the cars. But there was evidence for the plaintiff that one of the employés asked the boys to help push the car, and also that the foreman saw the boys pushing the car and made no objection.

Upon a nonsuit this evidence must be taken as true, and, if true, it was negligence for the defendant through its foreman to permit a child of the age of the plaintiff to participate in such dangerous work with its great liability of injury to those who are not presumed to have judgment to avoid the dangers incident to such work.

If the railroad employés invited or permitted ...