Boyette v. Atlantic Coast Line R. Co.
| Decision Date | 07 May 1947 |
| Docket Number | 596. |
| Citation | 42 S.E.2d 462,227 N.C. 406 |
| Parties | BOYETTE v. ATLANTIC COAST LINE R. CO. |
| Court | North Carolina Supreme Court |
Varser McIntyre & Henry, of Lumberton, for plaintiff-appellant.
Poisson Campbell & Marshall, of Wilmington, and E.K. Proctor, of Whiteville, for defendant-appellee.
Plaintiff's appeal brings up for review the propriety of the ruling of the trial court in sustaining defendant's motion for judgment of nonsuit, and hence it becomes necessary to consider the evidence offered in order to determine its sufficiency to warrant submission of the case to the jury.
The material facts were these: The defendant operates a line of railroad through the northwest section of the Town of Chadbourn, the general direction being north and south. An unpaved street or road lies to the east of and parallel with defendant's tracks, some 40 or 50 feet away. On defendant's right of way, between its tracks and the road, it maintains a platform, three feet high, and on this platform is piled from time to time timbers and cross-ties for use in the conduct of defendant's business. On the occasion complained of a pile of used trestle timbers had been placed on this platform parallel with the track. These timbers were 7 X 12 or 14 inches in size and approximately 16 feet long. Some were worn or decayed at the edges and partially rounded, and contained protruding bolts. Some were piled with the narrow rather than the wider side down. It was testified the pieces were piled up as well as they could be packed with the bolts in some of them, and the pile sloped a little. On the piles of lumber or cross-ties which from time to time were placed on the platform children had been observed to play.
On the afternoon of February 12, 1943, the plaintiff, who was at that time 6 years of age, and living with his parents near by, climbed upon this platform and one of the timbers fell on his foot and crushed his toes. The plaintiff testified he was standing on the platform when one of the timbers rolled on his foot. He testified he had gotten on the platform and taken a step and started to take another when the timber rolled down and hit him.
Plaintiff's action is not bottomed on the principle of attractive nuisance as elucidated in the Turntable case (Sioux City & Pacific Railroad Co. v. Stout, 17 Wall. 657, 84 U.S 657, 21 L.Ed. 745), but on negligence, in that the maintenance of a pile of bridge timbers on a platform on defendant's right of way adjoining an open road or street, coupled with defendant's knowledge of the habit of children to play on these piles of material, imposed upon the defendant the duty of exercising due care to guard against injury to such children which it should have foreseen was likely to occur, and that defendant's failure to perform its duty in this respect, and also in respect to the manner in which the timbers were piled, was the proximate cause of plaintiff's injury. In support of this position counsel for plaintiff cite Kramer v. Southern Ry Co., 127 N.C. 328, 37 S.E. 468, 470, 52 L.R.A. 359. In that case cross-ties were piled at a street intersection in Marion, North Carolina, in the street, and a child playing on a pile of cross-ties was injured. One of the questions debated there was the effect of the imputation of negligence from obstructing the street. However, the Court said: "The defendant's negligence would not consist in piling the cross-ties in the street, but it would consist in its failure to guard against injury to the children, after it had learned of their habit of playing on the ties, and its failing to provide against their injury." This statement, by a divided Court, must be understood in relation to the facts of that case and the questions therein raised. The principle upon which liability for injury to children from the maintenance of inherently dangerous instrumentalities which are attractive and alluring to them was discussed at length by Justice Walker in Fertell v. Dixie Cotton Mills, 157 N.C. 528, 73 S.E. 142, 37 L.R.A., N.S., 64. In the opinion in that case the conclusion stated in Brown v. Salt Lake City, 33 Utah 222, 93 P. 570, 14 L.R.A., N.S., 619, 126 Am.St.Rep....
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