Murray v. Richmond & Danville R.R. Co.

• Decision Date: 31 October 1885
• Citation: 93 N.C. 92
• Court: North Carolina Supreme Court
• Parties: HERBERT MURRAY v. RICHMOND AND DANVILLE RAILROAD COMPANY.

93 N.C. 92

HERBERT MURRAY

v.RICHMOND AND DANVILLE RAILROAD COMPANY.

Supreme Court of North Carolina.

October Term, 1885.

This was a CIVIL ACTION by the plaintiff, through his mother as guardian ad litem and next friend, against the Richmond & Danville Railroad Company and the North Carolina Railroad Company, for damages for being injured by falling from an engine of the Richmond and Danville Company. There was no evidence offered or verdict asked against the North Carolina Railroad Company, and a judgment was entered in its favor without objection. It was tried before Graves, Judge, and a jury at February Term, 1885, WAKE Superior Court.

In the month of April, 1882, the plaintiff, residing with his mother near the depot or station of the defendant company, at the city of Raleigh, and then not quite eight years of age, was seen by the engineer in charge, upon the shifting engine, and made to get off, being told that he could not ride on it. Soon after, watching his opportunity and seeing the engine about to move toward the water-tank, the plaintiff, unobserved by the officer, again got on the engine, placing himself on the plow or “cow-catcher,” which goes in front, in such a position that he could not be seen by the engineer, when standing and operating the machinery, until moving it attained a speed of four miles an hour, he became alarmed and attempted to jump off. In so doing his leg was caught between the bars of the plow, and he sustained the injury for which, in this action, he demands compensation in damages.

He was, however, seen in his perilous position by a colored man, who directed him to get off, to which he made no answer, but, as he himself described it, ““wuggled his back at him.” The plaintiff had before been warned by his mother, and on this very morning been forbidden to go there. The engine was used in shifting cars at the station and not in general transportation. No whistle was blown, or other signal given of the starting, and this, owing to the frequency of its movements in one direction and another, was not deemed necessary for the protection of persons who were about. The engineer testified that when standing at the place where he was and ought to be for the management of the engine and in controlling its action, he could not see the plaintiff and did not see him until in his attempt to get off he was caught between the bars, and it was too late to prevent the injury. He could, however, if in his seat, and looking out through the window of his cab, have discovered the plaintiff. His mother, as shown by an attending physician, had before expressed her apprehensions that her son would be killed or hurt on the road, but did not anticipate such an accident as befell him.

These are the general facts developed in the testimony and attending the accident upon which negligence is imputed to the servants of the company, and the claim for compensatory damages rests.

Mr. D. G. Fowle, for the plaintiff .

Messrs. Reade, Busbee & Busbee and T. R. Purnell, for the defendant .

SMITH, C. J., (after stating the case as above).

There can be no question that an adult, thus exposing himself to peril, would be held to have brought the injury upon himself by his own act, and if his own negligence and want of care for his own safety were not the direct and immediate cause of the injury, they were so contributory to it as to take away any just ground of complaint against the company. The plaintiff's case is, however, distinguished by his counsel upon the ground that his extreme youth required much greater vigilance and strict attention from the company for his protection than if of more mature years. While this is true it does not dispense with the exercise of such regard for his own safety, as may be expected in one of such age, and certainly does not excuse the reckless disregard of repeated warnings given the plaintiff, and his persistent purpose to ride on the engine and hazard the consequences.

The principle to be extracted from the most approved adjudications in the United States is thus announced in a recent work: An infant, so far as he is personally concerned should be held to such a degree of care only, as is usual among children of his age; though if his own act directly brings the injury upon him, while the negligence of the defendant is only such as exposes the child to the possibility of injury, the latter cannot recover damages. Shear. and Red. on Negligence, sec....