Tart v. Southern Ry. Co

• Decision Date: 08 January 1932
• Docket Number: No. 411.,411.
• Citation: 202 N.C. 52,161 S.E. 720
• Court: North Carolina Supreme Court
• Parties: TART . v. SOUTHERN RY. CO. et al.

161 S.E. 720

(202 N.C. 52)

TART .

v.SOUTHERN RY. CO. et al.

No. 411.

Supreme Court of North Carolina.

Jan. 8, 1932.

Appeal from Superior Court, Guilford County; Warlick, Judge.

Action by Vernon Tart, by his next friend, Edward Tart, against the Southern Railway Company and another. From an adverse judgment, plaintiff appeals.

Affirmed.

This is an action to recover damages for personal injury alleged to have been suffered by the plaintiff through the negligence of the Southern Railway Company. The case was tried in the municipal court of the city of High Point. The defendants' motion for nonsuit was denied, the usual issues were submitted to the jury and answered in favor of the plaintiff, and judgment was given awarding damages. The defendants appealed to the superior court, and the judgment of the municipal court refusing the motion for nonsuit was reversed.

Gold, York & McNally, of High Point, for appellant.

Roberson, Haworth & Reece, of High Point, and Richard C. Kelly, of Greensboro, for appellees.

ADAMS, J.

Whether other error prejudicial to the defendants was committed during the trial in the municipal court is a matter with which we need have no concern if the superior court was correct in dismissing the action, and this question we must determine by giving to the evidence such construction as is most favorable to the plaintiff. Given this interpretation, the evidence tends to establish the following facts:

The plaintiff was injured at the Taylor Street crossing in the city of High Point. At this place the defendants have five tracks extending northeast and southwest; a sidetrack, a passing track, the south-bound main line, the north-bound main line, and another sidetrack. Broad street runs parallel with the tracks on the north side, and Taylor street intersecting with Broad street crosses the tracks and intersects with Millis street on the south. Midway between the outside tracks the crossing was about ten feet in width, wide enough for one automobile to pass another; at other places it was much wider. It was smooth in the center, but on each side the rails were two or three inches above the ground. There was an arclight fourteen steps from the outside rail on the west side of the railroad. A watchman's house, six by eight feet, stood near the intersection of Broad and Taylor streets, but at the time of the injury no watchman was on duty.

On the evening of April 4, 1930, at about half-past seven o'clock the plaintiff and Gilchrist Newell passed from the south side over the Taylor street crossing, went to a drugstore for ice cream, and started back to the home of the plaintiff's aunt. They passed the watchman's house and again went on the crossing. On their right hand, that is, fourteen steps from the southern side of the crossing, there were box cars on the side track and the passing track nearest broad street Be-tween the second track from Broad street (the passing track) and the north-bound track on which the injury occurred lies the southbound track. The distance between the passing track and the south-bound is about ten feet, and ten feet between the south-bound and the north-bound, making an open space of about twenty feet between the passing track and the north-bound track. On the latter, a long freight train came from the south or southwest.

The plaintiff was eleven years and seven months old. He and his companion were walking. He testified that no signal was given of the approaching train, that he heard neither bell nor whistle. He then portrayed the accident.

He said that he looked before going on the tracks but could not see the train on account of the box cars; that he looked again at the watchman's house; that he looked the last time when he was in front of the cars, and that he did not know how many tracks he crossed or the track on which the train was running. When asked whether he looked after he had passed the cars, he answered, "the train was right on me when I looked; * * * that was after I had passed the end of the box cars. * * * It was right on me and I started to run and fell. * * * I fell on my hands and the train hit me as I was getting up. I didn't see the train before I started to run across. I never saw the train until it was right over me. I saw the train before I stumbled; I was not running when I stumbled; I started to run and fell. I was in the middle...