Vaden v. North Carolina R. Co

• Decision Date: 21 May 1909
• Citation: 150 N. C. 700,64 S.E. 762
• Court: North Carolina Supreme Court
• Parties: VADEN. v. NORTH CAROLINA R. CO.

64 S.E. 762

(150 N. C. 700)

VADEN.

v.NORTH CAROLINA R. CO.

Supreme Court of North Carolina.

May 21, 1909.

1. Railroads (§ 397*)—Injuries to Person on Track — Actions—Evidence—Admissibility.

In an action for the death of plaintiff's intestate, who was struck by a car shunted onto a switch track, evidence that there was much passing by school children, factory hands, and citizens generally along the street near which the accident occurred, and in the vicinity thereof, was properly admitted, as it tended to show a condition that should have put the railroad company on notice as to the necessity for caution.

[Ed. Note.—For other cases, see Railroads, Dec. Dig. § 397.*]

2. Railroads (§ 365*)—Injuries to Persons on Track—Flylng Switch.

To make a "flying switch" on a railroad track across or along a street of a populous town is negligence per se.

[Ed. Note.—For other.cases, see Railroads, Cent. Dig. § 1256; Dec. Dig. § 365.*]

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

Action by Chas. E. Vaden, administrator, against the North Carolina Railroad Company. Judgment for plaintiff, and defendant appeals. No error.

Wilson & Ferguson, for appellant.

W. P. Bynum, Jr., and R. C. Strudwick, for appellee.

BROWN, J. The defendant in apt time entered a motion to nonsuit, which the court overruled, and defendant excepted.

The undisputed evidence tends to prove that the intestate, a boy 13 years of age, was struck and killed on defendant's tracks by a car which had been shunted onto the switch track, and was moving quite rapidly towards Tomlinson street crossing. The car had no brakeman on it, and had been "kicked" onto the track by the engine, thereby making what is called a "flying switch." The switch tracks were located in a populous part of the city of High Point, and the intestate was killed immediately in front of Tomlinson's factory, where he worked. The evidence for plaintiff tends to prove that he was killed about 30 feet from where Tomlinson street crosses the tracks. The evidence for defendant locates him further from the crossing. All the evidence shows that these switch tracks were situated in a populous part of the city, and adjacent to, and close by, factories where many persons of all ages were employed. At the time the intestate was killed, the factory had just closed for the day, and the employes were filling the streets and crossings. The court permitted evidence to the effect that there is much passing by school children, factory hands, and citizens generally along Tomlinson street, and in the vicinity of the accident, to which defendant excepted. We see no objection to this evidence. It tended to establish conditions that should have put the defendant on notice as to the necessity for caution in moving its cars at this point. Railroad v. Smith, 93 Ky. 449, 20 S. W. 392, 18 L. R. A. 66. This case presents none of the features of Bailey's Case (N. C.) 62 S. E. 912. The intestate in that case had wrongfully entered the switching yards, and climbed on the tender of an engine, and was killed in a collision. Making "flying switches" on the railway tracks and sidings running across and along the streets...