Lineberry v. North Carolina Ry. Co.

• Decision Date: 21 May 1924
• Docket Number: 333.
• Citation: 123 S.E. 1,187 N.C. 786
• Parties: LINEBERRY v. NORTH CAROLINA RY. CO.
• Court: North Carolina Supreme Court

123 S.E. 1

187 N.C. 786

LINEBERRY v. NORTH CAROLINA RY. CO.

No. 333.

Supreme Court of North Carolina

May 21, 1924

Appeal from Superior Court, Alamance County; Finley, Judge.

Action by John Scott Lineberry, by his next friend, W. L. Lineberry against the North Carolina Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Negligence in operating train at excessive speed in violation of ordinance was not proximate cause of injury to a boy who was pushed under a car by another boy, there being an intervening cause.

The plaintiff, John Scott Lineberry, is a minor, and W. L Lineberry has been duly appointed his next friend, and the defendant is a corporation organized and existing under the laws of North Carolina. Its roadbed, equipment, etc., is leased to the Southern Railway Company, which is operating same under the lease as a common carrier of passengers and freight.

The plaintiff alleges:

"(1) That on the 13th day of April, 1921, the defendant, among other trains, was operating and running a fast freight train through the town of Mebane, N. C., a thickly populated town; that in said town there is a double track extending some distance east and about three blocks west of the passenger and freight station of the defendant; that from about one-half mile west of the said station to the said station and beyond there is a downward and steep grade; that about 2 1/2 blocks west of said station there is a deep cut, in which is located two parallel tracks of the defendant, with an embankment on either side of said tracks about eight feet in height; that at this point there is a well-worn footpath crossing said tracks, which is and has been used for more than a year by the school children of said town who live on the north side of said track in going and returning from school, and by pedestrians generally; that the plaintiff at the time of the injury hereinafter alleged lived on the north side of said railroad, and the public school building of the town was located on the south side of said railroad, about two blocks therefrom; that at the time of the said injury the plaintiff was attending said school, and was in the habit of crossing with other children the railroad at this point that there were dirt steps to the said embankment, which were very steep, on both sides of said railroad, and that the plaintiff and his schoolmates were in the habit of stopping in this cut, and running down or sliding down said embankment and playing there; that local freight trains usually stopped at said freight station, and when so stopped the rear end of said local train was frequently extended to or near this point, where the said children at their play frequently boarded or attempted to board the local freight trains and ride down to the said station.

(2) That on the 13th day of April, 1921, in the afternoon, about 3 o'clock, the plaintiff and his schoolmates of tender years, and all about the age of plaintiff, were returning from school, and stopped in this cut, and there were engaged as usual in playing and watching the trains, when a fast train came along running at the rate of 25 miles an hour, and before plaintiff could realize his danger he was struck by the said fast train and drawn by suction or some other force of said train under one of the wheels of said train, and had his left foot cut entirely off below the ankle and his left leg above the ankle horribly crushed, mangled, and mutilated and so injured that it was necessary to hurry him to a hospital at Burlington, N. C., about eight miles distant, where his left leg was amputated about four inches above the knee in consequence of said injury, and where he was compelled to remain for ______ weeks, and by reason of said injury the plaintiff was caused to suffer the most intense pain in body and in mind, and was permanently injured thereby, and still suffers therefrom.

(3) That the defendant knew or by the exercise of reasonable care should have known that this footpath or crossing was almost daily used by little children of immature years, and further knew or should have known that the children were attracted to this place, and were frequently playing there, and that the defendant had knowledge of the fact that these children were frequently tempted to board, and did board and play on its local freight trains; that the defendant knew or should have known that this plaintiff and his playmates who gathered there and played and crossed there were of such tender years that they could not appreciate and comprehend the danger to which they were subjected by the dangerous conditions at this point.

(4) That the defendant owed to the plaintiff the duty of removing or remedying the dangerous conditions at said foot crossing, and with its knowledge thereof a further duty of keeping a proper lookout while approaching said crossing in anticipation of the obvious and known dangers existing there, and also the duty of observing the ordinance of said town regulating the speed of its trains, and that in breach and by reason of the breach of these duties the plaintiff, without fault on his part, was injured in the way and manner aforesaid.

(5) That the defendant was negligent in that it failed to remove or remedy the conditions which it knew or should have known by the exercise of reasonable care had been created, allowed, and permitted to exist at this dangerous crossing, and the dangers to which this plaintiff was subjected at this place; and in that the defendant was operating and running the said fast train on said occasion at a reckless, dangerous and unlawful rate of speed in violation of section L, chapter 5 of the ordinances of the town of Mebane, which provides that 'it shall be unlawful for any person, persons or corporation to run any train or trains within the corporate limits of the town of Mebane at a greater rate of speed than fifteen miles an hour in said town'; and in that it failed in running at this rate of speed to keep a proper lookout for the danger or dangers which it knew or by exercise of reasonable care should have known and anticipated at said point; and in that the defendant was violating its common duty not to run its trains at an excessive, dangerous, and unnecessary speed and manner under the circumstances of this case while approaching and crossing this well-known and well-worn footway across this track in said town within the corporate limits of which the said injury was inflicted.

(6) That the negligence of the defendant's lessee as aforesaid was the proximate cause of the said injury to the plaintiff, who is now of the age of less than nine years, and deprived of one leg and injured for life.

(7) That by reason of said injury by the negligence of the defendant's lessee as aforesaid the plaintiff has been endamaged in the sum of $25,000."

The defendant denies the material allegations of the complaint, and for a further defense avers:

"That on the date mentioned in the complaint it was operating a freight train, and that the same was running through the town of Mebane at a rate of speed not in excess of eight miles per hour; that, after the engine of said freight train had passed the point at which plaintiff was injured, at which point there was no footpath or crossing of any kind going across the tracks of the defendant, and while said freight train was still in motion, the plaintiff, without giving any sign of his intention so to do, suddenly ran to said train and tried to swing upon a moving box car, and that, while so doing and before defendant could possibly, in any way, prevent said act or stopped said train, the plaintiff fell, and was injured by having his leg crushed; that the defendant was guilty of no negligence in any way; that in no way it was the cause of or brought about the injury to plaintiff."

The defendant for a further defense and as a plea of contributory negligence alleges:

"That on the date mentioned in the complaint while the defendant was operating a freight train, and was running the same through the town of Mebane at a rate of speed not in excess of eight miles per hour, and, after the engine of said freight train had passed the point where plaintiff was injured, there being at said point no crossing of any kind or footpath usually used as a crossing, there plaintiff carelessly and negligently, and without giving any sign of warning of his intention so to do, attempted to swing upon a moving box car of the train operated by defendant, and in so doing fell and was injured; that the careless and negligent acts of the plaintiff were the proximate cause of the injury sustained by plaintiff, and defendant pleads such negligent acts on the part of the plaintiff as acts constituting contributory negligence and as a bar to any right of plaintiff to recover."

Thos. C. Carter, of Hillsboro, and Koontz & Wharton, for appellant.

J. Dolph Long, of Graham, for appellee.

CLARKSON J.

The court below upon motion of defendant, rendered judgment of nonsuit against the plaintiff and the plaintiff excepted, assigned error, and appealed to this court.

The evidence of plaintiff, John Scott Lineberry, was as follows:

"My father's name is W. L. Lineberry. Little folks go to the bad man if they don't

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