Ashby v. . R. R. , 172 N.C. 98 ( 1916 )

This is an action for personal injury to a minor, at the time of the injury 8 years of age, who brings this action by his next friend. The employees of the defendant were operating a push-car loaded with cross-ties under the supervision of the section master. There was evidence that one of the employees asked the plaintiff and two or three other small boys to help push the car to the switch before the arrival of an approaching train, and that when the car approached the trestle one of the boys, with the knowledge and without objection of the employees or the foreman, jumped on the car and rode across; that they continued to push the car for several hundred yards till they approached a cattle-guard across the track in which there were sharp iron pointers which the plaintiff was unable to walk upon with his bare feet, and being cautioned by the foreman to "look out" for the cattle-guard, the plaintiff in attempting to climb upon the car to ride across slipped and fell, the wheel of the car passing over his foot. There was evidence that the child was not invited by the employees and that the section master in charge had no knowledge of his participating in pushing the car. But there was evidence for the plaintiff that one of the employees asked the boys to help push the car, and also that the foreman saw the boys pushing the car and made no objection. Upon a nonsuit this evidence must be taken as true, and, if true, it was negligence for the defendant through its foreman to permit a child of the age of the plaintiff to participate in such dangerous work with its great liability of injury to those who are not presumed to have judgment to avoid the dangers incident to such work.

If the railroad employees invited or permitted the plaintiff to take part in pushing the car the company was liable, though the company had forbidden the employees to permit this to be done. 33 Cyc., 819. It was not only the duty of the defendant to order the child from its tracks and from moving cars, but it should see that he does go away. (100) 33 Cyc., 769, and cases there cited. If the boy was there for that length of time, it was negligence if the foreman did not discover the child and make him leave.

In Greer v. Lumber Co., 161 N.C. 146, the Court held that there being evidence that the foreman permitted the children to ride on the engine, it was actionable negligence not to require them to leave.

Contributory negligence cannot be attributed to a child of the age of the plaintiff at the time of this injury.

The judgment of nonsuit is

Reversed.

Cited: Campbell v. Laundry, 190 N.C. 653 (2c); Brown v. R. R.,195 N.C. 701 2d; Morris v. Sprott, 207 N.C. 360 (2o).