Clare, O. L
The plaintiff was entitled to have this cause submitted to a jury.
There are thirty to forty tracks in Spencer, which are almost continuously filled with cars, more ox less. The railroad company has 1,300 operatives working in its shops and yards and living on both sides of the railroad, many of whom have to cross these tracks daily in going from their homes to their work, and returning. The defendant’s operatives and their families and attendant population constitute several thousand people. These operatives and people, or many of them, have to cross these tracks, necessarily, very often. The Avitness, whose evidence must be taken as true in this motion, says that several hundred people cross these tracks daily, and for ten years the custom has always been to go through, under or between the cars, or over them, whenever the tracks are blocked. The defendant, knowing this fact, was guilty of gross negligence, in that it did not provide either a subway or overhead bridges, or, at least, lifting bars, with a guard at each passway. The latter course was ordered (Brown, J., in Hickory v. Railroad, 143 N. C., 451) where there was only one track. Here there are forty. This is a necessary precaution, and, no precaution of any kind being provided, accidents such as this must necessarily occur.
It was also negligence, as this Court has over and again [458] declared, to attach the engine to this dead string of cars and suddenly run them backwards, without warning or signal or anyone on the rear of the train to give notice. Ray v. Railroad, 141 N. C., 84; Hudson v. Railroad, 142 N. C., 202. There being no bumper, or drawhead, when the plaintiff’s intestate was.caught between the cars by the sudden pushing back of the dead string of cars, he could not possibly escape.
This being a nonsuit, it is not necessary to set out all the testimony, but only so much as will show, “with the most favorable inferences which a jury would be authorized to draw from it,” that there was enough evidence to entitle the plaintiff to his constitutional privilege of a trial by jury. The following are verbatim extracts from the testimony:
The ¡Dlaintiff testified, in part: “There are two towns at Spencer — one on the east and one on the Avest side of the railroad tracks — and the shops are between the tAvo toAvns. I worked at the shops. About 1,300 people are employed there. I guess four or five hundred of the employees live on the east side of the railroad tracks; about 800 live on the west side. The population of East Spencer is about 5,000. The custom of those Avho live on the east side of the railroad, in going to the shops, is to cross the tracks to get to the shops to work. There are between thirty and forty tracks there. I have seen people going to and coming from their work across these tracks in great numbers. I know about where Grubb Avas injured. There, is an opening leading from the carpenters’ shop as far as the shed goes. There is a plank walkway that leads to the carpenters’ shop; it is used by people to walk across and to roll hand cars across the tracks. The opening runs north and south. If cars are on the tracks across this opening, people have to climb over, or under, or through, or go around the cars.”
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Clare, O. L
The plaintiff was entitled to have this cause submitted to a jury.
There are thirty to forty tracks in Spencer, which are almost continuously filled with cars, more ox less. The railroad company has 1,300 operatives working in its shops and yards and living on both sides of the railroad, many of whom have to cross these tracks daily in going from their homes to their work, and returning. The defendant’s operatives and their families and attendant population constitute several thousand people. These operatives and people, or many of them, have to cross these tracks, necessarily, very often. The Avitness, whose evidence must be taken as true in this motion, says that several hundred people cross these tracks daily, and for ten years the custom has always been to go through, under or between the cars, or over them, whenever the tracks are blocked. The defendant, knowing this fact, was guilty of gross negligence, in that it did not provide either a subway or overhead bridges, or, at least, lifting bars, with a guard at each passway. The latter course was ordered (Brown, J., in Hickory v. Railroad, 143 N. C., 451) where there was only one track. Here there are forty. This is a necessary precaution, and, no precaution of any kind being provided, accidents such as this must necessarily occur.
It was also negligence, as this Court has over and again [458] declared, to attach the engine to this dead string of cars and suddenly run them backwards, without warning or signal or anyone on the rear of the train to give notice. Ray v. Railroad, 141 N. C., 84; Hudson v. Railroad, 142 N. C., 202. There being no bumper, or drawhead, when the plaintiff’s intestate was.caught between the cars by the sudden pushing back of the dead string of cars, he could not possibly escape.
This being a nonsuit, it is not necessary to set out all the testimony, but only so much as will show, “with the most favorable inferences which a jury would be authorized to draw from it,” that there was enough evidence to entitle the plaintiff to his constitutional privilege of a trial by jury. The following are verbatim extracts from the testimony:
The ¡Dlaintiff testified, in part: “There are two towns at Spencer — one on the east and one on the Avest side of the railroad tracks — and the shops are between the tAvo toAvns. I worked at the shops. About 1,300 people are employed there. I guess four or five hundred of the employees live on the east side of the railroad tracks; about 800 live on the west side. The population of East Spencer is about 5,000. The custom of those Avho live on the east side of the railroad, in going to the shops, is to cross the tracks to get to the shops to work. There are between thirty and forty tracks there. I have seen people going to and coming from their work across these tracks in great numbers. I know about where Grubb Avas injured. There, is an opening leading from the carpenters’ shop as far as the shed goes. There is a plank walkway that leads to the carpenters’ shop; it is used by people to walk across and to roll hand cars across the tracks. The opening runs north and south. If cars are on the tracks across this opening, people have to climb over, or under, or through, or go around the cars.”
Lee Ketchie testified, in part: “I lived on the east side of the railroad during the three years and eleven months preceding 25 November, 1905. I had to cross the lower end of [459] freight yard, and also the shop yard, in order to get to my work. I know wbat the custom of the defendant’s employees in going to and from tbeir work was. This custom bad existed ever since the shops were built, in the spring of 1896. The custom was to cross the freight yard and to go through, under or between the cars or over the top of them. As a general thing, people going from East to West Spencer go across the yard. This custom has prevailed since the shops were built. Several hundred people went backward and forward' daily at the time the intestate was hurt, and before. The defendant’s employees have to cross through, between the cars, or over them, to get to their work. My duties often required me to work in the yard; others were required to work in the yard. We had to go from the carpenter shop to the yard, down through the opening to the carpenter shop. There was another opening south of the opening to the carpenter shop; it led from the car shops across the other tracks. The tracks of the opening are laid the same distance apart as the railroad tracks. Both of these openings run east and west, through the sheds. The railroad tracks cross these openings and run north and south. When the openings are filled with cars or trains, the workmen go to their work by crossing under the cars or going over or between them. This is so, to a great extent. The crossings are constantly blo"cked, mornings and evenings and several times a day. They were usually blocked in the mornings, when we went to work. They were frequently blocked about quitting time in the afternoon. The men, to get to their homes, had to cross the line of cars or go a considerable distance around them. Those who went home to dinner had to cross these tracks and go out across the freight yard. People could not have gone around and gotten their dinners and gotten back in time to work. I have seen the foremen crawl through cars, and under cars, numbers of times. On 25 November, 1905, I was at the shops, right near where the intestate was injured. It would not exceed fifty or sixty [460] feet from where I was to where the intestate was injured. He was between two of the cars standing on the shop lead track; he was going toward East Spencer — east from the carpenter shop. The intestate was injured on track No. 8, called the shop lead track. Before he started to cross, going east, there was a siring of cars on this trade; they were there that morning as I went to■ worlc at 7 o’clock. He was injured just a little after 8 o’clock. Between 7 o’clock and the time the intestate was injured, the cars stood still. If there was an engine to the cars I did not see it. An engine was finally attached to the north end of the string of cars. The string of cars stood across the opening; about four of the cars were south of the opening. The opening was shut tip and impassable, unless yon went between the cars or under them. The middle of the car was on the crossing (opening); cars were attached to each end of that car. The intestate was caught between the cars about one-half car-length north of the opening. I suppose he went to the nearest place to go between the cars. The place where he was caught was fifteen or twenty feet from the crossing (opening). I saw where the cars were when the engine was attached to them. I was on track No. 9, two car-lengths from where Grubb was hurt; it was about sixty feet from where he was hurt. I was about forty feet nearer the engine than he was. I could not see the engine when it tuas attached to the cars. It was down in the lower (north) part of the yard, around a curve. The tracks east of the lead track, which run into the lead track, were filled with cars; they went out to within a short distance of the lead track. They could not see the engine from their side. It was impossible for Grubb to see the engine from where he stood. I saw the cars he was caught between; one of them had the drawhead out and they were chained together. The one farthest north had the drawhead and bumpers out. It was chained to car behind it. There were between two and three feet between the cars as they were chained together. [461] The cars came together when the engine pushed cars loach. Grubb was between two cars, passing over, and was caught. The cars could not have come together if the car had had a drawhead. They would have been about two feet apart. There ivas no flagman on the rear, of the train before the cars were shoved bach together. There ivas no flagman or sentinel on the ground to give signals. There was no ivaichman or sentinel at either of these openings or crossings. No signal was given, that I heard. If the bell of the engine had been ringing as it was attached to the cars, it could have been heard where Grubb was."
As this witness stated that this “string of cars” had been on the track since 7 o’clock; that “if there was an- engine to the cars I did not see it”; and, further, “An engine was finally attached to the north end of the string of cars”; that “I (witness) was about forty feet nearer the engine than he (the deceased) was”; that “I could not see the engine when it was attached to the cars,” it is an inference the jury might have reasonably drawn (and is, therefore, to be considered on a nonsuit) that this string of 'cars, which had been standing on the track since 7 o’clock, and to which he did not see any engine, was a dead string of cars, and that the sudden attachment of the engine and its being run back, without notice or signal, was the causa causans of the death of plaintiff’s intestate.
The plaintiff’s intestate was a boy, working on the night shift in the defendant’s shops on the west side of these forty tracks. His tour of work ended at 7 A. M. He then had to return over these numerous tracks, as he lived on the east side. He had to wash up, and possibly may. have remained to breakfast or for other purposes, so that it was after 8 o’clock when he started home across these tracks, as he and others residing on the east side were accustomed to do. There is no evidence that this delay made it any more dangerous than if he had crossed sooner after 7 o’clock. He found a [462] string of “dead” cars standing still on one of tbe tracks, tbe rear car of wbicb was exactly across bis usual road borne. Between tbe end of tbis car and a disabled car, attached to tbe rear car by a chain, there was an interval of several feet. Tbe intestate attempted to pass through tbis interval. He thus went probably a third of one car’s length out of tbe direct road (one witness says fifteen feet) to clear tbe car standing in tbe road. Tbe string of cars was made up of “dead” cars, we take it, with no engine attached. Tbe sudden attachment of tbe engine, wbicb was done around a curve, so that tbe intestate did not see it attached, and tbe pushing back of tbe cars, without signal or anyone on tbe rear to give notice, it would seem, were the proximate cause, and not tbe conduct of tbe boy, who was getting across these numerous tracks in tbe best way be could, as be and so many others were daily required to do. If there was any contributory negligence, whether that or tbe negligence of tbe defendant was tbe proximate cause of tbe death of tbe boy was a matter wbicb should be passed on by tbe jury, not by tbe court.
Tbis renders it unnecessary to consider tbe other exceptions for exclusion of evidence. Tbe judgment dismissing tbe action is set aside.
New Trial.