Boykin v. Atl. Coast Line R. Co

• Decision Date: 06 January 1937
• Docket Number: No. 672.,672.
• Parties: BOYKIN. v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

211 N.C. 113

189 S.E. 177

BOYKIN.

v.ATLANTIC COAST LINE R. CO.

No. 672.

Supreme Court of North Carolina.

Jan. 6, 1937.

Appeal from Superior Court, Cumberland County; Clawson L. Williams, Judge.

Action by Dora Boykin, administratrix of Jasper Boykin, deceased, against the Atlantic Coast Line Railroad Company. From a judgment of nonsuit, the plaintiff appeals.

Reversed.

Civil action to recover damages for death of plaintiff's intestate, alleged to have been caused by the wrongful act, neglect, or default of the defendant.

Plaintiff's intestate, a boy ten years of age, was fatally injured on the afternoon of April 24, 1935, when struck by defendant's train at Rowan street crossing in the city of Fayetteville. There are five tracks at this crossing, two side tracks, a pass track, and two main-line tracks. It is used extensively, day and night, by vehicular and pedestrian traffic, including children living in the vicinity as well as those attending the normal school near the crossing. At this point, the railroad runs practically north and south, while Rowan street runs east and west.

Plaintiff's intestate was walking west-wardly along Rowan street. As he approached the crossing, a shifting engine, with cars attached, passed on the eastward track going in a northerly direction. As soon as this shifting engine and cars cleared the crossing, plaintiff's intestate started across the track, "running or walking, " and was struck by the engine of No. 89, southbound passenger train on the westward track, which was running at a high' rate of speed, in violation of city ordinance, and without signal or warning of its approach.

From a judgment of nonsuit entered upon demurrer to the evidence, plaintiff appeals, assigning error.

Downing & Downing and Nimocks & Nimocks, all of Fayetteville, for appellant.

Rose & Lyon, of Fayetteville, for appellee.

STACY, Chief Justice.

The basis of the nonsuit is that plaintiff's intestate was contributorily negligent as a matter of law under authority of Tart v. Southern R. Co., 202 N.C. 52, 161 S.E. 720. The Tart Case is distinguishable by reason of the fact that there the accident occurred 61 steps from the crossing and the plaintiff traversed a distance of 20 feet with unobstructed view before stumbling in front of an on-coming train. Here, the injury occurred at the crossing which had just been obstructed by the shifting engine and cars.

It was conceded on the argument that, had plaintiff's intestate been an adult, the judgment of nonsuit would probably have been correct. Rimmer v. Southern R. Co., 208 N.C. 198, 179 S.E. 753; Young v. Southern R. Co., 205 N.C. 530, 172 S.E. 177; Eller v. North Carolina R. Co., 200 N.C. 527, 157 S.E. 800; Pope v. Atlantic R. Co., 195 N.C. 67, 141 S.E. 350; Davidson v. Seaboard Air Line R. Co., 171 N.C. 634, 88 S.E. 759; High v. Carolina Cent. R. Co., 112 N.C. 385, 17 S.E. 79. Without passing upon the suggested hypothesis, we are of opinion the issues should have been submitted to the jury under all the evidence in the case.

There is a presumption which comes to the aid of a child of tender years. Caudle v. Seaboard Air Line R. Co., 202 N.C. 404, 163 S.E. 122; Ghorley v. Atlanta R. Co., 189 N.C. 634, 127 S.E. 634; 20 R.C.L., 123; note, 27 Ann.Cas. 969.

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