Harris v. Winston-salem Southbound Ry. Co
Decision Date | 07 January 1942 |
Docket Number | No. 738.,738. |
Citation | 18 S.E.2d 204,220 N.C. 608 |
Court | North Carolina Supreme Court |
Parties | HARRIS. v. WINSTON-SALEM SOUTHBOUND RY. CO. et al. |
Appeal from Superior Court, Forsyth County; Hubert E. Olive, Special Judge.
Action by Hubert Harris, by his next friend, John Harris, against the Winston-Salem Southbound Railway Company and others for personal injuries sustained by plaintiff while playing upon defendant's railroad car. From an order sustaining defendant's demurrers to the complaint, the plaintiff appeals.
Affirmed.
Civil action to recover for an alleged negligent injury.
The complaint in substance alleges:
1. That the defendant railway company left standing on its sidetrack, situate on the property of the Salem Steel Company, "a certain empty and open railroad car used for the purpose of holding and transporting long pieces of steel; that said open car remained upon the said sidetrack of defendants, and near a well travelled path and children's playground, for a number of days without being watched, supervised, or attended by defendants or anyone for them, when defendants and each of them knew or should have known that children of tender and immature years were and would be attracted to said empty and open car for the purpose of climbing in and playing thereon, and that defendants, and each of them, knew that children did climb upon and swing to said car from a certain derrick belonging to defendants or one of them".
2. That on Sunday afternoon, September 24, 1939, about 4 P. M., the plaintiff, a boy twelve years of age, together with a number of companions, "were attracted to said car, did climb upon and into same, as they were accustomed to do, * * * when a heavy steel door or gate attached to one end of said open and empty railroad car, which door or gate had been negligently left by defendants, their agents and employees, standing in an upright and vertical position without being fastened or supported as it was the duty of defendants and each of them to do, fell upon the person of the plaintiff'', and injured him.
3. That defendants and each of them, , and that such negligence was the proximate cause of plaintiff's injury.
Wherefore, plaintiff prays, etc.
The defendants interposed demurrers on the ground that the complaint does not state facts sufficient to constitute a cause of action and fails to allege any breach of duty on the part of the defendants.
From order sustaining the demurrers, the plaintiff appeals, assigning errors.
Buford T. Henderson, E. M. Whitman, and J. F. Motsinger, all of Winston-Salem, for appellant.
Craige & Craige, of Winston-Salem, for appellee Railway Co.
Ira Julian of Winston-Salem, for appellee Steel Co.
The question for decision is whether an open and empty railroad car, standing unattended on a commercial sidetrack where children are accustomed to play, is such an attractive nuisance as to im-port liability for failure to safeguard it against injury to a twelve-year-old boy while playing thereon on a Sunday afternoon. In sustaining the demurrers, the trial court answered in the negative, and we approve.
The negligence alleged...
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