McVoy v. Oakes

MaRshall, J. According to the allegation of the complaint, defendants’ servants, with knowledge that the plaintiff’s ward, a boy of such tender years that he could not be [217] held to a very high degree of care, too young certainly to be held guilty of contributory negligence as a'matter of law, was in a dangerous situation, recklessly and wantonly gave speed to the moving train, and suddenly jerked the child from his feet and threw him under the cars. It needs no-argument or citation of authority to support the proposition that such conduct, under the circumstances alleged, constitutes actionable negligence. We do not deem it necessary to consider how the boy happened to be in the position he was at the time of the injury. Without any reference to-how he came to be in such situation, defendants’ servants at least owed to him the duty not to knowingly, recklessly, and wantonly injure him. The care required of railroad companies to prevent injury to small children upon the track is the subject of an extensive note to Bottoms v. S. & B. B. Co. (114 N. C. 699) in 25 L. E. A. 784.— Rep. By the Court.— The order of the superior court is affirmed, and the cause remanded for further proceedings according to law.