Appeal
from Superior Court, Columbus County; Connor, Judge.
Action
by C. M. Soles, administrator of D. S. Soles, against the
Atlantic Coast Line Railroad Company. Judgment of nonsuit
and plaintiff appeals. Nonsuit set aside, and new trial
granted.
Civil
action to recover damages for death of plaintiff's
intestate, alleged to have been caused by defendant's
negligence.
We will
first state the material portion of the evidence; it being
partly the defendant's statement of it, but principally
the part taken by us from the record itself.
It
seems necessary to give the substance of the testimony fully
as the court below nonsuited the plaintiff upon it.
The
defendant, through its agent, David Faulk, trestle foreman
employed plaintiff's intestate, who was a boy about 14
years of age, after having been forbidden by the boy's
father and mother to do so, for the reason that the
employment was dangerous, and the father and mother were not
willing that the boy should be exposed to the risk; and
notwithstanding the agent had been so informed, the boy was
employed at Tabor, N. C., on Saturday or Sunday, and carried
to a point near Smithfield, N. C., on defendant's line,
where he was killed the following Tuesday, while sitting
"on the right-hand side of the rail, with his feet
toward the center of the south-bound track of defendant's
railroad," and "with his elbows on his knees,
something like this (witness indicates), with his head in his
hands, dropped over like that (witness indicates)," and
apparently asleep. It was a bright, warm, sunshiny day.
The
train was a freight, and had exploded two torpedoes on the
track, 500 or 600 yards from where the boy was killed, and,
notwithstanding this noise, and the sounding of the whistle
and other noises, the boy did not move from the time the
train came in sight until he was struck by the engine (having
a cowcatcher), run over, and his body severed; the upper part
of it being left on the outside of the rail and the legs on
the inside, without any bruises.
C. M.
Soles, testified:
"I
am the administrator of my son, D. S. Soles. His mother is
now living. He was 14 years old and five months, lacking 7
days. We had him in school most of the time. He had done
some work around there. He worked for me. I never paid him
anything when he worked for me. He worked all the way from
50 cents down to something like 25 and 50 cents an hour for
other people. He was perfectly healthy, as healthy a boy as
I have ever seen. I have never had to call a doctor for him
but once, and that was a little bilious attack, but he was
up the next day, sitting around the house. I live in Mt.
Tabor, in Columbus county. To Smithfield from Tabor the
fare on the railroad is $4.98. I don't know what the
distance is. My boy went off on Sunday evening, and Tuesday
morning I got the news about the middle of the day, I
suppose somewhere between 12 o'clock and maybe 1, of
his death. He was working under David Faulk, trestle
foreman. He spoke to me about employing the boy. Mr. Faulk
employed hands. This is the same trestle foreman who had a
talk with me under whom he was working at the time he was
killed, while in the employ of the Atlantic Coast Line
Railroad Company. He asked me and his mother if he could
carry this boy back with him to Enfield. I think, if I am
not mistaken, he was stationed at Enfield at that time. He
asked me if he could take the boy up there. The boy, I
guess, knew we wouldn't let him go. We told him that he
could not go. His mother asked him if that wasn't
dangerous work, and he said it was. She said he simply
could not go, and I told him I didn't want him to go.
We went off to the farm. We had a farm out there nine
miles. Faulk came after him after we went there, and said
that the boy had written him a letter and told him if he
would let him know when he came back he would go back with
him, that his mother and I (his father) had agreed for him
to go back. I told him if the boy had written that, he had
written something not so; that we didn't agree for him
to go. I did not know until he was killed the actual time
he was employed. He went off Sunday evening, we missed him
Monday morning, and Tuesday about 1 o'clock I got the
telegram. The only way I knew he had gone off with Faulk
was what his little brother said about it. This boy had no
legal guardian appointed by the court. I did not see the
boy after he was killed. I have been to where they said he
was killed. I am about 52 years old. I will be 52 the 1st
day of December. My son, D. S. Soles, was not married. My
wife is a year younger than I am. I had older children;
they were all married and moved away. He contributed to the
support of myself and wife. All of the work he did, he did
with us. He did work around the house when he was not in
school. He worked around the house before and after school.
The character of the work when he was not in school was
principally plowing and working on the farm. He did the
same work I was paying $2.50 a day to have done. When he
worked out for other people, we used the money in the
family. He had not done much work off. I am unable to work.
I have a kidney trouble that works me, and am unable to do
any work at all, unless it is light work, mighty light. I
don't know what kind of kidney trouble I have. The
doctor told me I had kidney trouble. He told me I was
seriously afflicted with kidney trouble, that my time was
short, and I wouldn't live very long. I have six
children older than this boy. The married children do not
contribute anything to my support. I don't know whether
he would contribute anything to my support or not, but he
wasn't married. I don't know whether he would have
gotten married or not. He was an intelligent boy, and
weighed about 125 pounds, and did whatever I told him
to."
J. Y.
Baker testified:
"I
live in Johnston county between Four Oaks and Smithfield. I
was 700 or 800 yards from D. S. Soles when he was killed on
the main line, which was well graded and double tracked.
The train was going up the grade, and the boy was a little
bit over the tip of the grade. From the north the track was
straight 66 rails. I counted them. I saw the boy before he
was killed, walking around on the track. I saw him about 15
minutes after he was killed. The boy was cut in two across
the lower part of his body; his head lying on outside of
rail, his feet on inside of outside rail on south-bound
track. He had no bruises at all. Eight or ten cars had
passed over his body. You can see about 60 rails a man
lying down on the track. It was upgrade. Mr. Soles had me
to count the rails with Mr. Stanley. My place is about 400
yards from where the boy was killed; my gristmill about 100
yards. From Neuse river going south, the main Atlantic
Coast Line track runs upgrade and then down to Black creek.
This train was a freight train, and I guess it runs from
Rocky Mount, N. C., to Florence, S. C. I did not see this
accident, but I saw the boy about 15 minutes before the
accident, and he was walking about. I was too far off to
tell whether he had the flag in his hand or not, but I knew
he was up there, and I saw him walking around."
C. G.
Norris testified:
"At
the time the boy was killed, I was working on the trestle
force of the Atlantic Coast Line in Johnston county under
D. M. Faulk, the foreman, with D. S. Soles. I was on top of
the trestle at the time he was killed, about 400 yards
north of him. He was flagging. He took a flag when he left
us. I heard the train blow before it came around the curve.
I looked up and saw the boy. It looked as if he was sitting
on the right-hand rail on the south-bound track. It looked
as though he might have been sitting on the railroad on the
side of the rail, with his elbows on his knees, something
like this (witness indicates), with his head in his hands,
dropped over like this (witness indicates). He was facing
the inside of the track. I said on the rail on the
right-hand side going south. He didn't move that I
could tell. I was looking at him when the train hit him. He
was sitting down, and they blowed three or four short blows
at him. It looked like it knocked him off the track on the
outside. The engine had a cowcatcher coming to a point in
front. I went down to where he was killed. The track was
straight and upgrade for 300 or 400 yards, I guess. When he
left the construction force, he carried a flag and some
torpedoes. I saw him place the torpedoes, 500 or 600 yards
north of where he was killed. They were placed crossways
the rail, with little fasteners bent under the rail. They
make a noise when the train strikes them. I heard a noise
like the torpedoes, but couldn't say it was that. Mr.
Faulk, the trestle foreman of the railroad, employed me,
and he was in charge of the gang. He employed others before
and after me. I am 23 years old, and a native of Columbus
county. We left him along the track as we were going to
work with his flag and torpedoes. I was in the car with Mr.
Faulk and this boy when Mr. Faulk took him out and dropped
him at the place where he was to flag, and the balance went
on down to the trestle in the motorcar. We left him at a
certain place with a flag and some torpedoes for the
purpose of flagging the train. He was to protect the people
working on the trestle. Mr. Faulk told him carefully about
flagging the train. He told him he must flag it, and that
he must under no circumstances go to sleep. I heard him
tell part of it. I heard him tell him that if anything
whatever came down there to flag it until he called him in.
He told him he must be very careful to flag it. He gave him
a flag. I heard the train blow a signal whistle before I
saw it
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