Harris Ex Rel. Harris v. Winston-Salem Southbound Railway Co.

Stacy, C. J. The question for decision is whether an open and empty railroad car, standing unattended on a commercial sidetrack where children are accustomed to play, is such an attractive nuisance as to import liability for failure to safeguard it against injury to a twelve-year-old boy while playing thereon on a Sunday afternoon. In sustaining the demurrers, the trial court answered in the negative, and we approve. The negligence alleged is, that the defendants left the car in question unattended, i.e., “without being watched, supervised, or attended by defendants or anyone for them,” when they knew or should have known that children were accustomed to play thereon. It could hardly be held for law that every empty freight car which is allowed to stand for several days on a sidetrack, in the vicinity where children are wont to play, should be attended by a watchman. This would be to place it in the category of a playground. The defendants are not so engaged. The allegation that the defendants negligently left the door or gate of the car in an upright and vertical position without being fastened or supported as it was the duty of the defendants to do, is but a conclusion of the pleader on the facts alleged, and is not admitted by the demurrers. Leonard v. Maxwell, Comr., 216 N. C., 89, 3 S. E. (2d), 316; Andrews v. R. R., 200 N. C., 483, 157 S. E., 431; Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761. The fact that the door or gate was ordinarily laid flat upon the surface of the car, as plaintiff further alleges, did not *701 impose upon tbe defendants tbe duty to beep it so as a protection to tbe plaintiff and bis playmates. Tbe authorities are in support of tbe judgment below. Rogers v. Alton R. Co., 288 Ill. App., 462, 6 N. E. (2d), 244; L. & N. Ry. Co. v. Ray, 124 Tenn., 16, 134 S. W., 858; Colby v. Chicago Junct. Ry. Co., 216 Ill. App., 315, cited in 36 A. L. R., 256; Smith v. Hines, 212 Ky., 30, 278 S. W., 142, 45 A. L. R., 980. Tbe pronouncements in tbe last cited case follow: 1. A standing freight car is not a dangerous piece of machinery such as to bring it within tbe attractive nuisance class. 2. A railroad company is not liable for injury to a child which falls from a railroad car standing in its yard in a populous portion of a city, because there are handholds on the car which permit children to climb to the top of it, and the company, with knowledge of the custom of children to play on the cars, takes no precaution to safeguard them or warn them of the danger of so doing. The case of Christiansen v. Los Angeles & S. L. R. Co., 77 Utah, 85, 291 Pac., 926, cited and relied upon by plaintiff, is not at variance with the authorities above cited. There, a freight car was left on a grade Avithout application of hand brakes, or blocks placed under the wheels, and it ran away down the grade and injured the plaintiff who was trying to rescue his child from the moving car. Quite a different fact situation from the one here presented. In Twist v. Winona & St. P. R. Co., 39 Minn., 164, 12 Am. St. Rep., 626, 39 N. W., 402, Mitchell, J., speaking to the subject, said: “To the irrepressible spirit of curiosity and intermeddling of .the average boy, there is no limit to the objects which can be made attractive playthings. In the exercise of his youthful ingenuity, he can make a plaything out of almost anything, and then so use it as to expose himself to danger. If all this is to be charged to natural childish instincts, and the owners of property are to be required to anticipate and guard against it, the result would be that it would be unsafe for a man to own property, and the duty of the protection of children would be charged upon every member of the community except the parents or the children themselves.” The demurrers were properly sustained. Affirmed. Seawell, J., dissents.