Greer v. Damascus Lumber Co.

• Decision Date: 20 December 1912
• Citation: 76 S.E. 725,161 N.C. 144
• Parties: GREER v. DAMASCUS LUMBER CO
• Court: North Carolina Supreme Court

76 S.E. 725

161 N.C. 144

GREER v. DAMASCUS LUMBER CO

Supreme Court of North Carolina

December 20, 1912

Appeal from Superior Court, Ashe County; Allen, Judge.

Action by Andy Greer, administrator, against the Damascus Lumber Company. From a nonsuit, the plaintiff appeals. Reversed.

The tailboard of a backing engine is a dangerous instrumentality and where a child is killed, while riding thereon with the knowledge of the engineer, negligence and contributory negligence are for the jury.

In an action for the death of a child, killed while attempting to get off the tailboard of a backing engine, or by falling off the question of defendant's negligence held, under the evidence, for the jury.

This is an action to recover damages for causing the death of the plaintiff's intestate by the negligence of the defendant as alleged in the complaint. The defendant is a corporation owning a lumber plant and operating logging trains, and was running one of its trains at the time hereinafter mentioned. On or about December 15, 1910, the deceased, about 10 years old, and her brother, a small boy, were at a water tank on defendant's road near Gentry's Creek, Tenn. The children lived about four miles from this place at Stikesville, N.C. While the children were at the tank, the defendant's logging train pulled up and stopped there to get water. The children had seen other children ride on defendant's train and had been permitted to ride themselves, so they asked the fireman to let them ride on the engine, across the mountain, to their home. He gave the permission, and they got on the tailboard of the tender of the engine, a little step used by brakemen in switching. He gave them permission to ride in this position. It was customary to let children ride on the train when they asked to do so. About halfway up the mountain, the logging train went out on a switchback, a "device" for reversing the engine so as to "grade" the mountain. At this place, the flagman saw the children and spoke to them, but never told them to get off nor did he tell them that they were in a dangerous position. The engine moved ahead with the children on the tailboard. When the train reached a point about 79 steps from the home of the deceased, her father saw his children on the tailboard and in a dangerous position. He had forbidden the trainmen to permit his children to ride on defendant's trains. The train was in full view of his house all of the way from the place where he saw the children to the place where the little girl was killed. On seeing his children in a dangerous position, he ran out and hailed the fireman and conductor and signaled to them that the children were in a perilous situation, and for them to stop, so that the children could step off. He gave the signal to stop, and continued to halloo and to give signals until the little girl was injured. He knew the right signal, as he had been a trackwalker. The fireman and engineer were looking at him, but failed to stop. They could have heard him, for the son, who was on the tailboard with the deceased, heard him halloo. The engine passed by him, within a few feet of him, and all of the time he was trying to get them to stop and let the children off but they would not. After the engine had passed by the place for the children to get off, the little girl jumped off or fell off. She fell on the track, the engine, ran over her, and from her injuries she died. The fireman, who let them get on the engine knew where they lived. The fireman could see the children on the tailboard, and the engineer could also at the switch. He could have seen the little girl when she fell if he had been looking. The engine was moving very slowly, and he was not attending to his duties at the time. The engine could have been stopped within a foot or two feet. It moved 8 or 10 feet after the little girl fell, before it struck her. After it struck her, it dragged her in the wheels for 15 feet or more. When she fell her brother gave the alarm, but the engine was not stopped until the deceased's brother had taken her out of the wheels by the hair of her head, after the engine had reversed its course to go onto another track. After hearing the testimony, the court nonsuited the plaintiff, and he appealed.

Chas. B. Spicer, of Jefferson, for appellant.

T. C. Bowie, of Jefferson, for appellee.

WALKER, J. (after stating the facts as above).

As this is a nonsuit, we must consider the evidence in the most favorable view for the plaintiff. Beck v. Bank, 76 S.E. 722, at this term, and cases cited. The question is whether there was any evidence which should have been submitted to the jury, and we are of the opinion that there was.

We do not rest our decision of the case upon the ground that the firemen permitted the two children to ride on the engine ( Dover v. Manufacturing Co., 157 N.C. 324, 72 S.E 1067), but rather upon the ground of there being evidence that the fireman and flagman knew they were children of tender years and immature judgment, and that they were on the tailboard of the tender, an exceedingly dangerous place, and that they were not capable of exercising that degree of care for their safety which a grown person would under the same circumstances. It is their extreme youth and their perilous position which combine to make a case of actionable negligence on the part of the defendant; the want of proper care being the proximate cause of the girl's death. We considered a somewhat similar question in Ferrell v. Cotton Mills, 157 N.C. 528, 73 S.E. 142, 37 L. R. A. (N. S.) 64, and some of the principles discussed in that case are applicable here. Every person should so use his own property as not to injure another, is an ancient maxim of the law, which has survived in its full vigor to the present time. It was said in Ferrell v. Cotton Mills, supra: "Although the dangerous thing may not be what is termed an attractive nuisance--that is to say, not have especial attraction for children by reason of their childish instincts--yet where it is so left exposed that they are likely to come into contact with it, and where their coming in contact with it is obviously dangerous to them, the person so exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them from its being so exposed, and is bound to take reasonable pains to guard it, so as to prevent injury to them." This principle is substantially the same as that applied in the "turntable cases," of which is Railroad v. Stout, 84 U.S. (17 Wall.) 657, 21 L.Ed. 745. In the latter case, the following instruction of Judge Dillon to the jury was not only approved but commended, as an impartial and intelligent statement of the law, all of which will appear by reference to Railway v. McDonald, 152 U.S. 262, 273, 14 S.Ct. 619, 623, 38 L.Ed. at page 440, where this charge is given as follows: "The machine in question is part of the defendant's road, and it was lawfully constructed where it was. If the railroad company did not know, and had no good reason to suppose, that children would resort to the turntable to play, or did not know, or had no good reason to suppose, that if they resorted there they would be likely to get injured thereby, then you cannot find a verdict against them. But if the defendants did know, or had good reason to believe, under the circumstances of the case, that the children of the place would resort to the turntable to play, and that if they did they would or might be injured, then, if they took no means to keep the children away, and no means to prevent accidents, they would be guilty of negligence, and would be answerable for damages caused to children by such negligence." We refer especially to the Stout and the McDonald decisions, for the reason that they discuss with great clearness the principles upon which is based the right of recovery in behalf of children...