Jessup v. High Point, Thomasville & Denton Railroad , 244 N.C. 242 ( 1956 )

93 S.E.2d 84 (1956) 244 N.C. 242

Eller JESSUP, Administrator of the Estate of Derrell Lee Jessup, Deceased,
v.
HIGH POINT, THOMASVILLE and DENTON RAILROAD COMPANY, a corporation.

No. 605.

Supreme Court of North Carolina.

June 6, 1956.

W. B. Byerly, Jr., Rufus K. Hayworth, Jr., High Point, for plaintiff, appellant.

James B. Lovelace, High Point, for defendant, appellee.

HIGGINS, Justice.

The defendant admitted in the answer that on infrequent occasions boys had boarded and ridden its freight cars in its yard in the City of High Point. Coupled with the admission, however, and as a part of it, is the averment that in boarding the cars the boys did so at a distance from the stations occupied by the train crew, thereby eluding efforts to apprehend them.

The evidence introduced by the plaintiff is sufficient to show that Charles Carroll, age 14, had ridden defendant's train at least on 10 occasions; that on one occasion a member of the crew saw him. His younger brother had also ridden the train. Paula Jean Allen had observed boys riding the train on several occasions, once when a member of the crew was in the cab. Mrs. Havannah Allen testified there was a path along the tracks between street crossings and that children played along that path when the weather permitted. She had seen children throwing sticks and paper under moving cars. At the time of the accident she saw David Carroll hanging onto a freight car near the front of the train, though she did not see the rear of the train.

The evidence, when analyzed, shows about what the defendant admitted: That on infrequent occasions boys boarded and rode moving cars in defendant's yard. The admission of the defendant and the evidence of the plaintiff are not sufficient to charge the defendant with actual notice that children were in the habit of catching defendant's moving freight cars to the extent that permission to do so may be presumed. Children were uninvited and, therefore, at least technical trespassers. The duty owed to trespassers is that they must not be wilfully or wantonly injured. That children may be trespassers has been frequently held by this Court. Ford v. Blythe Bros. Co., 242 N.C. 347, 87 S.E.2d 879; Briscoe v. Henderson Lighting & Power Co., 148 N.C. 396, 62 S.E. 600, 604, 19 L.R.A., N.S., 1116. The law does not require a railway company to guard every approach to its tracks and trains, and to make its premises child-proof. "``Actionable negligence exists only when the one whose act causes or occasions the injury owes to the injured party a duty, created either by contract or operation of law, which he has failed to discharge.' The inducement to enter must be equivalent to an invitation." Briscoe v. Henderson Lighting & Power Co., supra.

In many of the cases cited by the plaintiff, the injury resulted from hidden dangers. In Ford v. Blythe Bros. Co., supra, a pit of live coals under a cover of ashes was left unguarded where small children were known to play. In Greer v. Damascus Lumber Co., 161 N.C. 144, 76 S.E. 725, injury resulted to a 10-year-old child riding on the tailboard of a locomotive. However, the engineer knew of its presence and permitted it to ride in a place of danger. In Vest v. Chesapeake & O. R. Co., 117 W.Va. 457, 187 S.E. 358, 360, the Supreme Court of West Virginia said: "* * * the long duration of the practice of boarding this train with the tacit approval of the practice by the conductor and brakemen, imposed on defendant the duty to anticipate a continuation of the practice and to make reasonable efforts to discourage it." These and other cases cited by the plaintiff do not strengthen his position.

A railway track and a moving train are interesting to boys; so is an apple tree full of ripe fruit. But there is a distinction between a temptation on the part of a trespasser to enter upon another's property and an invitation on the part of the owner for him to do so. A farmer cannot guard his orchard at all times. A railroad cannot guard its tracks at all times.

The case of Andrews v. Seaboard Air Line Railway Co., 200 N.C. 483, 157 S.E. 431, 432, in its legal aspects is strikingly similar to the case here. The plaintiff, a minor, caught a moving freight car in the City of Raleigh and, while holding to the ladder, was injured by one of the supports as the car passed under a bridge. The complaint alleged that boys from a nearby playground were accustomed to board and ride freight cars; that the custom was known to the defendant; and that the defendant was wilfully and wantonly negligent in permitting the practice to continue; that the injury was proximately caused by such negligence in a number of specified respects. The Superior Court sustained the demurrer and this Court affirmed the judgment in a per curiam opinion, stating: "We are of opinion that the complaint * * * does not set forth the breach of any duty the defendant owed the plaintiff. Bailey v. [North Carolina] R. Co., 149 N.C. 169, 62 S.E. 912; Monroe v. [Atlantic Coast Line] R. Co., 151 N.C. 374, 66 S.E. 315, 27 L.R.A.,N.S., 193; Brigman v. [Fiske-Carter] Construction Co., 192 N.C. 791, 136 S.E. 125, 49 A.L.R. 773."

The plaintiff argues that on the particular facts in this case he is entitled to go to the jury upon the theory that an employee of the defendant was actually present at the crossing and by the exercise of due care could and should have prevented the plaintiff's intestate from attempting to board the train; and that his failure to do so was negligence on the part of the defendant.

At the time the plaintiff's intestate suddenly "lunged" at the train in his attempt to board it, four of his companions Were on the opposite side of Ennis Street. They were also near the track—the four boys on the east side and the plaintiff's intestate on the west side of Ennis Street. The Jessup boy attempted to catch the rear of the car next to the last or the front of the last car. At the time, the member of the crew prepared to and did catch the rear end of the last car to take his place as a member of the crew. No doubt at the last moment he was watching the rear of the car preparatory to catching the ladder.

We cannot accept plaintiff's contention it was the duty of the defendant to guard its trains in such manner as to prevent children from attempting to ride its freight cars; but if the contention be accepted, the plaintiff's case must fail in this instance because his own evidence shows a member of the crew was actually present at the crossing and that plaintiff's intestate suddenly lunged at the train in such manner and with such speed that the employee had no opportunity to prevent the injury. Just prior to the unsuccessful attempt which resulted in his death, the boy was in a place of safety where he had a lawful right to be; that is, in Ennis Street. There was nothing to warn the watchman that he would suddenly become a trespasser and attempt to board the train. No breach of legal duty on the part of the defendant is shown by the evidence in this record. Jones v. Southern R. Co., 199 N.C. 1, 153 S.E. 637; Vassor v. Atlantic Coast Line R. Co., 142 N.C. 68, 54 S.E. 849, 7 L.R.A.,N.S., 950; Murray v. Richmond & D. R. Co., 93 N.C. 92; N.C.L.Rev., Vol. 26, p. 227, (the authorities from many jurisdictions are cited).

In Harris v. Winston-Salem Southbound R. Co., 220 N.C. 698, 18 S.E.2d 204, 206, it is 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.' [Twist v. Winona & St. P. R. Co., 39 Minn. 164, 39 N.W. 402, 12 Am. St. Rep. 626.]"

The judgment of the Superior Court of Guilford County is

Affirmed.

PARKER, J., dissents.