Fry v. Southern Public Utilities Co.

• Decision Date: 05 April 1922
• Docket Number: 441.
• Citation: 111 S.E. 354,183 N.C. 281
• Parties: FRY v. SOUTHERN PUBLIC UTILITIES CO. ET AL.
• Court: North Carolina Supreme Court

111 S.E. 354

183 N.C. 281

FRY v. SOUTHERN PUBLIC UTILITIES CO. ET AL.

No. 441.

Supreme Court of North Carolina

April 5, 1922

Appeal from Superior Court, Mecklenburg County; Lane, Judge.

Action by W. A. Fry, as administrator of the estate of Perry Fry against the Southern Public Utilities Company and the Standard Ice & Fuel Company. Judgment for plaintiff against the Standard Ice & Fuel Company, and that defendant appeals. New trial.

In an action for the death of a 12 year old boy, the question whether his contributory negligence, if any, in riding on the steps of an ice wagon, was the proximate cause of his injury was a question for the jury, where there was evidence that the driver of the wagon knew he was there and recklessly drove onto a street car track in front of an approaching street car without any signal or without looking to see if the track was clear.

In an action for the death of a boy who was 1 month and 7 days under 12 years of age, an instruction that a boy under 12 years of age could not be guilty of negligence was erroneous since the negligence of a boy of that age is a question for the jury, and not a question of law.

This action was brought to recover damages for the death of plaintiff's intestate, alleged to have been caused by the defendant's (Standard Ice & Fuel Company's) negligence.

On June 28, 1919, plaintiff's son and intestate, Perry Fry, was instantly killed in a collision between an ice wagon of the Standard Ice & Fuel Company and a street car of the Charlotte Street Railway Company, at a point on Tryon street about 50 feet south of the intersection made by Tryon and Ninth streets in the city of Charlotte. On that day Perry Fry was under 12 years of age, his exact age being 11 years, 10 months, and 23 days.

The railway company was repairing its tracks on North Tryon street from Seventh to Ninth streets, and had dug up the concrete from between the rails and placed it in a pile, about 2 feet wide at the bottom and 18 inches to 2 feet in height, at the end of the cross-ties along the east side of the track, which had so narrowed the driveway on the right or east side of the street that there was room for only one vehicle to travel at a time from Seventh to Ninth street. This pile of concrete extended from Seventh street to Ninth street, with the exception of an open space about 30 feet in length just south of and about 50 feet distant from Ninth street. It was in this open space that the collision occurred.

It was Saturday afternoon about 4:30 o'clock, and the ice wagon, having completed its work for the day on Seventh street, came out of Seventh into Tryon and proceeded northward on Tryon on its return to the ice plant, traveling on the east side of the street between the piled up concrete and the curbstone of the sidewalk. C. L. Hill, the white man in charge of the wagon, and whose duty it was to ride on the rear step of the wagon, had abandoned the wagon at Seventh street, intrusting its safe return to the plant to the negro driver, Will Ferguson, and a half-grown negro helper, Robert Kinston. The latter, who was riding in the front seat with the driver, was so engrossed in eating his delayed midday lunch that he had no knowledge of the collision or its attendant circumstances, except that the impact thereof threw him out of the wagon.

Somewhere between Seventh street and the point of collision, a very congested section of the city, Perry Fry, and another small boy of about the same age, got on the rear step of the ice wagon; young Fry riding on that end of the step nearest the car tracks. This step was 14 inches from the ground. Before reaching the open space the driver heard boys' voices behind his wagon, and on looking back saw young Fry riding upon the rear step. When the wagon came to the open space in the pile of cement 50 feet south of Ninth street, the horses without warning were driven upon the street car track in a diagonal course toward West Ninth street, and very near an approaching street car. The front wheels of the ice wagon were upon the car track when the street car, also running north, struck the hub of the left front wheel of the wagon, knocking the front of the wagon away from the tracks and throwing the rear of the wagon in toward the street car. Young Fry was thrown from the rear of the ice wagon under the street car between the trucks, and when the car was stopped within its own length he was lying under the rear trucks of the street car. The left horse was down on the track with its feet in the fender of the car. Young Fry was dead when removed from under the street car.

It had been the custom for many years for little children to ride upon the rear step of defendant's wagons for the pleasure of the ride as well as to get ice. This custom was known to the defendant and had been constantly permitted by the drivers of its wagons. There was danger in children thus riding on the wagons of this defendant which was also known to the defendant.

The city of Charlotte had before the time of this fatality adopted the following ordinance, which was then in force:

"No vehicle shall be turned unless a signal shall previously be given by the whip or hand indicating the direction in which the turn is to be made. The driver of any vehicle, upon a track in front of a street car, shall, upon signal from the driver or motorman of said car, turn to the right of the track. The vehicles moving slowly shall keep as close as possible to the curb on the right of the street, allowing more swiftly moving vehicles free passage to their left. A vehicle overtaking another shall pass on the left side of the overtaken vehicle, and shall not pull over to the right until entirely clear of the vehicle passed. A vehicle, when turning to the left to enter an intersecting street, shall slow down to a speed of five miles per hour, and shall not turn until it shall have passed beyond the center of such intersecting street."

There was testimony that defendant had knowledge of this custom of small children riding on its wagons, and also that it had actual knowledge, through its driver, that the small Fry boy was on its wagon some time before the collision occurred which resulted in his death. Will Ferguson, the driver, testified:

"As I was driving down Tryon street that afternoon, between Eighth and Ninth streets, there was an opening just ahead of the left side where no broken concrete and rock had been piled upon or in the street. I heard a boy's voice behind my wagon say, 'Come on up! Come on up!' and I looked around through the wagon and saw this little white boy who got killed standing on the rear step."

The driver did not stop to put the boy off, nor did he tell him to get off. He drove his wagon through the open space 50 feet from the street intersection and upon the car track and close to the approaching street car.

W. J. Dellinger testified that, when the wagon looked like it was going to cross, "the street car was not far south of that open space; they were right close together." R. F. Rankin testified, "The street car and the ice wagon were very close together when I noticed the ice wagon," before the collision. Willie Wilson, who was on the street car, testified that the "car was somewhere about the middle of the block" when the horses started upon the tracks. R. A. Galloway testified that the horses' heads were about 6 feet from the open space when the car was about the middle of the block. Neal Elliott, the motorman, testified, that the car was only 15 feet away when the horses started upon the track. M. T. Kelley, Fred Stewart, and W. P. Chambers testified that the street car was 20 feet away when the horses started to cross the track. Not only was the wagon driven upon the car tracks in close proximity to the approaching car, but in turning to cross the tracks the driver did not hold out his hand or give any signal of his intention to cross. Neal Elliott, the motorman, testified, "The driver did not throw out his hand or warn me." Fred Stewart, who was standing at the corner of Ninth street in front of the wagon and in a position to see the actions of the driver, testified:

"Saw the ice wagon and the driver when the horses started across the track. The driver just started across there, and the street car hit the front wheel. Did not see the driver throw out his arm; he did not throw out anything. He did not look."

This witness further testified:

"The driver of the ice wagon was not paying any attention to anybody or anything. He did not look to the side of him, nor behind him, nor do anything except to drive the horses across there at a slow trot; he moved across diagonally."

The driver of the wagon testified that, just as he reached this open space, an automobile passed on his right next to the curb, and that as a result his horses shied and thus got upon the car tracks. Nowhere do we find in the record any evidence which supports the testimony of the driver in this regard. The eyewitnesses introduced by both the plaintiff and the defendant, except the driver, said the horses were driven upon the tracks and that no automobile passed the ice wagon at or near the time of the collision. C. G. Terrell, the only eyewitness introduced by the defendant, except the driver, testified:

"The horses were responsive to the driver. They moved as if they were being moved by the driver."

And again the defendant's same witness testified:

"When I saw the horses start to turn across the track, the street car was between the center of the block and Ninth street. The street car was not ringing any bell, and from that time on the horses proceeded diagonally across the track in the open space and the street car came right after them."

Nor was there sufficient room...