Potter v. Wilmington & Weldon R.R. Co.

• Decision Date: 28 February 1885
• Citation: 92 N.C. 541
• Court: North Carolina Supreme Court
• Parties: EVA S. POTTER, by her next friend, B. F. SLEDGE v. THE WILMINGTON & WELDON RAILROAD COMPANY.

92 N.C. 541

EVA S. POTTER, by her next friend, B. F. SLEDGE

v.THE WILMINGTON & WELDON RAILROAD COMPANY.

Supreme Court of North Carolina.

February Term, 1885.

CIVIL ACTION tried before Gudger, Judge, and a jury, at Fall Term, 1884, of HALIFAX Superior Court.

The plaintiff, a girl nine years old, sueing by her next friend, brought this action to recover damages for injuries sustained by her in the breaking of her arm while she was approaching the defendant's passenger train at Weldon to go on the same from that place as a passenger to Halifax, a station on the defendant's road. She alleges that the injury was occasioned by the negligence of the defendant in failing to keep the passage way for persons going on its train in good and safe condition and repair.

The evidence was, that the defendant and two other railroad companies, each had a railroad track, a short section of each road, constructed in the usual manner, upon lines a few feet apart, nearly or quite parallel each with the other, under a large shed common to all the companies at Weldon in this State. Passenger trains on each of these roads stopped regularly under this shed to let off and take on passengers and baggage, and transfer passengers and baggage from one train to another. No platform or elevation of any kind was used for such purpose; passengers got on the train directly from the ground, and getting off it stepped immediately upon the ground.

One of the tracks mentioned lay between the defendant's track and that on which the plaintiff fell and broke her arm.

The plaintiff, going a way frequently used by persons approaching defendant's train, while crossing the track of the Petersburg railroad, hitched her foot, as she testified, under the bottom of the iron-rail and fell. She did not know whether there was any open space under the iron-rail or not, she was looking in front of her towards the hotel, she had crossed one iron (meaning the iron-rail), and struck the next one and fell. She said “If I had been looking where I was walking I could have kept from falling.”

A witness who was with the plaintiff at the time of the accident, testified that only two trains meet at Weldon at that time, one train had arrived, the defendant's train was expected in a few minutes, many persons were then passing about, no engine moving there at the time the accident occurred, two or three minutes before schedule time for arrival of the train. This witness and plaintiff were going direct to the hotel; he said, “I was a step before her; she fell at the rail; I did not see her strike her toe; there was some elevation between this and next track on which she fell; there was a ridge of dirt two or three inches in height; the crossties were filled in between with earth even with the ties, smooth, and the dirt half-way of the rail, she could not have hung her foot under the rail. She is a child of average intelligence, she was nine years old. One looking where he was walking, could get over safely. The rails were of “T” iron. Track has been filled since the accident. More dirt in middle but not more against the rails. Flange of the engine keeps the dirt away from the inside of the rail two or three inches.”

Another witness testified, that during the Spring before the accident, the track was raised; track was not filled, end of sills exposed; enough of iron was exposed for the toe to catch under the rail; space of half-inch under the rail to the dirt. This is a common pass-way.”

Another witness testified that the “track had been in the same condition it was at the accident sometime before--a year or more. Dirt even with the ties in the middle of the track; flange of the rails covered. She could not get her toe under the bottom of the rail.” It...