Ashby v. Norfolk Southern Railroad

Clare, 0. J. Tbis is an action for personal injury to a minor, at tbe time of tbe injury 8 years of age, wbo brings tbis action by bis next friend. Tbe employees of tbe defendant were operating a pusb-ear loaded witb cross-ties under tbe supervision of tbe section master. There was evidence tbat one of tbe employees asked tbe plaintiff and two or three other small boys to help push tbe car to tbe switch before tbe arrival of an approaching train, and tbat when tbe car ajiproaehed tbe trestle one of tbe boys, witb tbe knowledge and without objection of tbe employees or tbe foreman, jumped on tbe car and rode across; tbat they continued to push tbe car for several hundred yards till they approached a cattle-guard across tbe track in which there were sharp iron pointers which tbe plaintiff was unable to walk upon witb bis bare feet, and being cautioned by tbe foreman to “look out” for tbe cattle-guard, tbe plaintiff in attempting to climb upon tbe car to ride across slipped and fell, tbe wheel of the car passing over bis foot. There was evidence that' the child was not invited by tbe employees and tbat tbe section master in charge bad no knowledge of bis participating in pushing tbe car. Rut there was evidence for tbe plaintiff tbat one of tbe employees asked tbe boys to help push the car, and also tbat tbe foreman saw tbe boys pushing tbe car and made no objection. Upon a nonsuit tbis evidence must be taken as true, and, if true, it was negligence for tbe defendant through its foreman to permit a child of tbe age of tbe plaintiff to participate in such dangerous work witb its great liability of injury to those wbo are not presumed to have judgment to avoid tbe dangers incident to such work. If tbe railroad employees invited or permitted tbe plaintiff to take part in pushing tbe car tbe company was liable, though tbe company bad forbidden tbe employees to permit tbis to be done. 33 Oyc., 819. It was not only tbe duty of tbe defendant to order tbe child away from its tracks and from moving cars, but it should see tbat be does go away. *100 33 Cyc., 769, and cases there cited. If tbe 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.