Brown v. Southern Ry. Co.

• Decision Date: 06 June 1928
• Docket Number: 453.
• Citation: 143 S.E. 536,195 N.C. 699
• Parties: BROWN v. SOUTHERN RY. CO. et al.
• Court: North Carolina Supreme Court

143 S.E. 536

195 N.C. 699

BROWN v. SOUTHERN RY. CO. et al.

No. 453.

Supreme Court of North Carolina

June 6, 1928

Appeal from Superior Court, Mecklenburg County; Bowie, Special Judge.

Action by Gilard Brown, administratrix of the estate of Rufus Edwards, deceased, against the Southern Railway Company and others. Judgment for plaintiff, and defendants appeal. New trial ordered.

Child between seven and eight, killed while crossing railroad tracks, held not incapable of contributory negligence as matter of law.

The allegations in plaintiff's complaint are as follows:

That just south of the intersection of the defendant companies' tracks with Second street, a public thoroughfare, in the city of Charlotte, N. C., children of tender age were accustomed to, and did, cross frequently the tracks and premises of the defendant companies, and did use at the times hereinafter mentioned and for several years prior thereto, the tracks and premises of the said companies as a playground; that the engines, cars, tracks, and other possessions of the defendant companies, the level condition of the premises, and the various collections of pebbles and other objects on the said premises of the said companies allured and attracted children of tender age, along with the plaintiff's intestate, to and on the said premises and tracks of the said railroad companies; that the defendant companies knew, or, by the exercise of reasonable care, ought to have known, that small children were allured and attracted by the said premises and possessions, and that said children so attracted and allured were incapable of caring for themselves amid moving engines and rolling stock and the various other inherently dangerous operations on the said premises; that, well knowing the dangerous conditions of the said premises, and well knowing the uses thereof by children of tender age, at the times hereinafter mentioned, and for many years prior thereto, the defendant companies, and each of them, failed, neglected, and refused to erect a fence or to give signals or to put a guard there, or to establish any sort or system of warning whatever that would put, or tend to put, children of tender age or any person on notice of the approach of locomotives and trains; on or about the 29th day of November, 1925, about 3:30 p. m., the plaintiff's intestate, who was about seven years of age, was crossing in an easterly direction, along with other children, the eastern track of the defendant companies; that, just as the said intestate reached the east rail of the east track, an engine or train of the defendants, in charge of W. D. Turner defendant, while backing and going in a northerly direction, operated at a high, unlawful, reckless, and dangerous rate of speed, without giving any warning or signal of any kind, and without a watchman on the rear of the said train or engine, and without keeping a proper lookout, ran over the said intestate, and cut off his left leg between the knee and the ankle, and crushed the right foot of the said intestate, and otherwise bruised and lacerated said intestate."

The issues submitted to the jury and their answers thereto were as follows:

(1) Was the plaintiff's intestate injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

(2) What damages, if any, is the plaintiff entitled to recover of the defendant? Answer: $2,000."

The exceptions and assignments of error and necessary facts will be stated in the opinion.

John M. Robinson, of Charlotte, for appellants.

Preston & Ross, of Charlotte, for appellee.

CLARKSON J.

At the close of plaintiff's evidence, defendants made a motion as in case of nonsuit, and at the close of all the evidence the motion was renewed. C. S. § 567. The court below overruled the motion, defendants excepted, and assigned error. We think the court below correct in the ruling. As oft repeated, the evidence is to be taken in the light...